                                                                                           09/06/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  July 18, 2018 Session

DURACAP ASPHALT PAVING CO. INC. v. CITY OF OAK RIDGE ET AL.

                Appeal from the Chancery Court for Anderson County
                 No. 16CH8034      M. Nichole Cantrell, Chancellor
                      ___________________________________

                           No. E2017-02414-COA-R3-CV
                       ___________________________________

The unsuccessful bidder on a contract for a street resurfacing project brought suit against
the City of Oak Ridge, alleging that the city had not followed the competitive bidding
process mandated by its municipal code. Plaintiff’s complaint sought declaratory relief,
equitable relief and damages, as well as review under a writ of certiorari. The trial court
determined that the lawsuit presented a proper case for review under the common law
writ of certiorari and dismissed the pleaded original causes of action, finding their joinder
to be inappropriate. The certiorari action was later dismissed after the trial court
determined that it was not supported by a proper oath or affirmation. On appeal, plaintiff
challenges the trial court’s conclusion that this case was proper for certiorari review. We
affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J., and JOHN W. MCCLARTY, J., joined.

W. Edward Shipe and Nicholas W. Diegel, Knoxville, Tennessee, for the appellant,
Duracap Asphalt Paving Company, Incorporated.

John T. Batson, Jr. and Brian R. Bibb, Knoxville, Tennessee, for the appellee, City of
Oak Ridge, Tennessee.

                                        OPINION

                                     BACKGROUND

      On April 5, 2016, the City of Oak Ridge (“the City”) issued an “Invitation to Bid
and Instructions to Bidders” for contract “FY2016-168 Street Milling and Resurfacing
Project” (“the Project Contract”). The invitation indicated that the City would receive
bids until April 13, 2016 and noted that “The City will make the award as soon as
practicable to the lowest responsible Bidder, price and other factors considered, provided
it is reasonable and in the best interest of the City. Ultimately, only two bids were
submitted in relation to the Project Contract. One bid was received from the Appellant,
Duracap Asphalt Paving Co., Inc. (“Duracap”); the other bid was received from Rogers
Group, Inc. (“Rogers Group”).

      On April 14, 2016, City Engineer Roger Flynn submitted a memorandum to Mark
S. Watson, the City Manager, recommending that Duracap be awarded the Project
Contract. Specifically, the memorandum stated:

      Recommendation

      Sealed bids were requested with two bids received and the recommended
      award is to the lowest bidder, with a submitted bid of $408,644.60. Staff
      recommends approval of the resolution as submitted that totals $430,000,
      allowing a contingency of $21,355.40 for unforeseen subsurface conditions.

On April 27, 2016, the City Manager executed the memorandum and recommended that
the City Council take action to award the Project Contract to Duracap.

Action by the City Council was necessary, because under the City’s municipal code,
obtaining material or services that involve an expenditure of more than $25,000.00 must
be done by way of a City Council resolution.

       On May 9, 2016, the City Council convened at a regularly scheduled meeting in
the City’s “Municipal Building Courtroom.” Among the items that had been placed on
the agenda was a resolution to award the Project Contract to Duracap. In addition to the
City Council members, the City Attorney, the City Manager, citizens, and a
representative of Rogers Group were present. No representative or officer of Duracap
appeared.

       Although the proposed resolution on the agenda had contemplated awarding the
Project Contract to Duracap, a City Council member moved during the course of the
meeting that the Project Contract be awarded to Rogers Group instead. Bill Chesney, a
representative for Rogers Group, told the City Council that there was more value in
Rogers Group’s bid “mainly because of the sales tax.” In expounding upon this claim, he
informed the City Council as follows:

      We have an asphalt plant here in Oak Ridge. It’s been here for 40, 60
      years, however long, and so the sales tax will be paid to Anderson County.
      It would not be paid to Anderson County; it would be paid to the City of
                                         -2-
       Knoxville if you did use Duracap. So I just wanted to try to clear that up
       and to say that we put our quality up against anybody’s.

The City Council eventually voted to award the Project Contract to Rogers Group, with
only one member voting against the resolution.

      Shortly thereafter, on May 19, 2016, Duracap filed a three-count “Complaint for
Declaratory or Equitable Relief and Damages and Writ of Certiorari” against the City in
the Anderson County Chancery Court. Duracap alleged that, although it was the lowest
responsible bidder under the municipal code, the City had failed to award it the Project
Contract. In addition to contending that any contract the City had with Rogers Group
should be considered void, Duracap requested certain damages and sought certiorari
review.

       In a subsequently-filed answer, the City denied that it had violated its code and
sought dismissal of Duracap’s case based on, among other reasons, Duracap’s failure to
join Rogers Group, which the City averred was an indispensable party. The City’s
answer also specifically attacked the asserted claim for money damages, in part, because
Duracap had allegedly “improperly joined an original action for money damages with an
appellate action for certiorari review.” On June 30, 2016, the City filed a motion for a
protective order. In averring that it should not be subject to discovery, the City argued as
follows: “[T]he Plaintiff seeks review of an administrative decision applying existing
ordinances, this case is one for common law certiorari, and not for declaratory relief.”
Duracap, of course, opposed the City’s motion for a protective order. It does not appear
from the record that the trial court ever specifically ruled on the motion.

       On September 9, 2016, the City filed a motion to dismiss, again averring that
Duracap’s complaint should be dismissed for failure to join Rogers Group as an
indispensable party. Then, on October 19, 2016, the City filed a “Partial Motion to
Dismiss on Alternative Grounds,” seeking dismissal of Duracap’s claims for declaratory
judgment and damages. In its October 19 motion, the City argued that the law was clear
that the “common law certiorari is the sole and appropriate remedy for challenging the
administrative decision of a municipal board.”

       Although Duracap would eventually amend its complaint to add Rogers Group as
a defendant, the trial court entered an “Order of Partial Dismissal” on November 2, 2016.
Therein, the trial court concluded that the common law writ of certiorari was the proper
vehicle for review of the City Council’s decision to award the Project Contract to Rogers
Group. Because a petition for a common law writ of certiorari may not be joined with
causes of action invoking the original jurisdiction of the trial court, the court dismissed
Duracap’s claims for declaratory relief, equitable relief, and damages. The trial court
allowed the remainder of the case to proceed, treating Duracap’s complaint as a petition
for a common law writ of certiorari.
                                            -3-
       On October 23, 2017, the City filed a motion to dismiss for lack of subject matter
jurisdiction. Therein, the City alleged that Duracap’s complaint did not comply with the
statutory and constitutional verification requirements that are mandatory when a
petitioner seeks a writ of certiorari. Shortly after the motion was filed, on November 20,
2017, the trial court entered an order granting the City’s motion due to the court’s
determination that Duracap’s complaint was not properly verified. Duracap timely
appealed.

                                        ISSUES PRESENTED

       In its appellate brief, Duracap presents three issues for our review, which we have
restated as follows:

       •Whether the trial court erred in granting the City’s motion to dismiss Count I of
the complaint for declaratory and equitable relief based on its conclusion that the relief
for the City’s alleged violations of the competitive bidding process was through a
common law writ of certiorari.

        •Whether the trial court erred in dismissing Count II for an award of damages.

       •Whether the trial court erred by granting the City’s motion for a protective order
thereby preventing Duracap from taking discovery.1

                                                DISCUSSION

       The crux of our focus in this appeal relates to the propriety of the trial court’s
November 2, 2016 order of partial dismissal. The trial court’s grant of a motion to
dismiss, which involves a legal conclusion, is subject to de novo review and is accorded
no presumption of correctness. Hamilton v. Abercrombie Radiological Consultants, Inc.,
487 S.W.3d 114, 117 (Tenn. Ct. App. 2014) (citations omitted). As already noted, the
trial court determined in its order of partial dismissal that this case was properly
reviewable under the common law writ of certiorari. If the trial court was correct in that
assessment, then its concomitant dismissal of the original causes of action asserted by
Duracap was unquestionably proper. See Goodwin v. Metro. Bd. of Health, 656 S.W.2d
383, 386 (Tenn. Ct. App. 1983) (noting that the “necessity of a separation of appellate
review of a matter and trial of another matter ought to be self evident”); State v. Farris,
No. W2017-00438-COA-R3-CV, 2018 WL 1225746, at *11 (Tenn. Ct. App. Mar. 9,
2018) (“[T]he regulatory taking claim—and all of Mr. Howell’s claims invoking the
        1
           As we have noted in this Opinion, it is unclear to us that the trial court ever specifically ruled on
the motion for a protective order. In any event, the propriety of a protective order regarding discovery is
pretermitted in light of (a) our determination that this case was properly amenable to certiorari review and
(b) our acknowledgment that Duracap has failed to challenge the trial court’s determination that its writ of
certiorari petition was not properly verified.
                                                     -4-
original jurisdiction of the chancery court—should have been dismissed at the outset. We
emphasize that a litigant may not bring claims invoking the original jurisdiction of the
Chancery Court when he or she has initiated the proceedings by seeking a writ of
certiorari.”); Watson v. City of LaVergne, No. M2006-00351-COA-R3-CV, 2007 WL
1341767, at *4 (Tenn. Ct. App. May 7, 2007) (“An appellate cause of action (i.e., a
petition for common-law writ of certiorari) cannot be joined with an original cause of
action .”). It further follows that, if the trial court was correct in holding that Duracap’s
grievances were amenable to certiorari review, the resulting final judgment below must
be affirmed inasmuch as Duracap has not challenged the trial court’s determination that
its complaint was not properly verified in accordance with the law applicable to writs of
certiorari. See Bing v. Baptist Mem’l Hosp.-Union City, 937 S.W.2d 922, 924 (Tenn. Ct.
App. 1996) (noting that an issue was waived when it was not raised on appeal).

                                                     I.

       The overriding concern at issue is how Duracap’s complaint should be considered.
Although the filed complaint sought declaratory relief, equitable relief and damages, and
review under a writ of certiorari, the parties2 vigorously dispute which claims are
properly implicated and capable of consideration in this case. As a general matter,
Duracap contends that review under a writ of certiorari is unavailable and that it should
be allowed to proceed under its claims which invoke the trial court’s original jurisdiction.
For its part, however, the City argues that the trial court was correct in holding that this
case was proper for certiorari review.3

       The appropriate mechanism to challenge the action of a governmental board or
body depends on the nature of the function that is at issue. The essential question posed
is “whether the inferior tribunal, board or officer exercised a legislative or an
administrative function.” McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn.
1990) (citing Fallin v. Knox Cnty. Bd. of Comm’rs, 656 S.W.2d 338, 341 (Tenn. 1983)).
As this Court has explained, “[i]n the former case, an action for declaratory judgment is
appropriate, while in the latter case, a petition for common law writ of certiorari is the
proper method by which to challenge an administrative decision.” Kiger v. Nixon, 1996
WL 512031, at *5 (Tenn. Ct. App. Sept. 11, 1996) (citing McCallen, 786 S.W.2d at 639).


        2
          We observe that Rogers Group was dismissed as a party to the appeal during the pendency of
the appellate proceedings and, accordingly, Rogers Group did not file a brief in this matter.
        3
           The City also makes a number of alternative arguments in its brief as to why relief against it is
improper. Among other things, the City contends that it is immune from money damages based on
principles of sovereign immunity and that the requested declaratory relief is now moot given the
performance of the resurfacing project by Rogers Group. Given our disposition herein, we need not
entertain the potential validity of these and other alternative arguments raised by the City.

                                                   -5-
Distinguishing a legislative action from an administrative action4 can be done by focusing
on whether the action taken makes new law or executes one already in existence.
McCallen, 786 S.W.2d at 639 (citation omitted). “In order to qualify as an
administrative, judicial, or quasi-judicial act, the discretionary authority of the
government body must be exercised within existing standards and guidelines.” Id.

        Courts should, when appropriate, give effect to the substance of a pleading rather
than its form. Brundage v. Cumberland Cnty., 357 S.W.3d 361, 371 (Tenn. 2011)
(citations omitted). We note that the Tennessee Supreme Court has permitted, for
example, an improperly filed petition for declaratory judgment to be treated as a petition
for writ of certiorari, and conversely, it has allowed an improperly filed petition for writ
of certiorari to be treated as a petition for declaratory judgment. Id. (citing McCallen,
786 S.W.2d at 640; Fallin, 656 S.W.2d at 342). Of course, while courts may yield to
leniency when seeking to ascertain the substance of the relief that is being requested in a
pleading, how a complaint or petition is construed can have significant consequences. As
this Court has noted, “[w]here the relief sought in a declaratory judgment action is the
same relief that is available under common law writ of certiorari, the action will be
treated as a certiorari action, and the requirements of such an action will be applied.”
State ex rel. Moore & Assocs., Inc. v. West, 246 S.W.3d 569, 581 (Tenn. Ct. App. 2005)
(emphasis added) (citations omitted).

        Inasmuch as Duracap nominally sought both declaratory relief and review by way
of the writ of certiorari in its initial complaint, how should that pleading be construed?
As a preface to our ultimate conclusion, we express our opinion that the decision at issue
was not legislative in nature. It was not a decision that brought new law into existence;
rather, the decision to award the Project Contract to Rogers Group was a decision made
within the confines of existing law in light of pre-defined standards.5 In other words, as
is characteristic of administrative action, the decision executed law already in existence.
In this vein, we note that both parties acknowledge that the City’s municipal code
provides that “[c]ompetitive bids on all supplies, materials, equipment, and services,
except those specified elsewhere in this chapter, and contracts for public improvements
shall be obtained, whenever practicable, and the purchase or contract awarded to the
lowest responsible bidder, provided that any or all bids may be rejected as prescribed in
this chapter.” (emphasis added). Further, we observe that the determination of the
“lowest responsible bidder” is subject to the consideration of several criteria; the
municipal code specifically outlines that price, along with nine other considerations, are
to be taken into account. Among the considerations in addition to price are the “quality
        4
          The term “administrative” is frequently used interchangeably in case law with “judicial” or
“quasi-judicial.” McCallen, 786 S.W.2d at 638 (citation omitted).
        5
           Whether these standards were appropriately considered and applied, of course, presents another
question. There can be no dispute, however, that the City’s municipal code provided a framework
restricting unbridled discretion with regard to the award of government contracts.
                                                  -6-
of performance of previous contracts or services” and the “character, integrity, reputation,
judgment, experience and efficiency of the bidder.”

        In support of its argument that it is entitled to sue for declaratory relief as opposed
to pursuing relief by way of a writ of certiorari, Duracap cites to a number of cases,
namely Browning-Ferris Industries of Tennessee, Inc. v. City of Oak Ridge, 644 S.W.2d
400 (Tenn. Ct. App. 1982), Anderson v. Metropolitan Development & Housing Agency,
No. M2012-01789-COA-R3-CV, 2013 WL 3941079 (Tenn. Ct. App. July 26, 2013), and
Duckworth Pathology Group, Inc. v. Regional Medical Center at Memphis, No. W2012-
02607-COA-R3-CV, 2014 WL 1514602 (Tenn. Ct. App. Apr. 17, 2014). Duracap cites
to the Browning-Ferris decision in part to argue that, in a former non-certiorari action,
the City had been successfully sued for violating a competitive bid process. Duracap
cites to the latter two cases in support of its primary appellate contention that certiorari
review is unavailable if the decision at issue was not first subject to an “internal appeal
process.”

         With respect to the decision in Browning-Ferris, we have no quarrel with the
holding in that case that an aggrieved low bidder had standing to sue the City for its
failure to comply with competitive bidding requirements. However, we would note that
the Browning-Ferris court did not contemplate the propriety, or lack thereof, of review
by writ of certiorari, as both the Anderson and Duckworth decisions acknowledge. See
Duckworth Pathology Grp., Inc., 2014 WL 1514602, at *7 (noting that the issue before
this Court in Browning-Ferris was “limited to standing, and there was no discussion of
subject matter jurisdiction or the possibility of proceeding via a petition for certiorari”);
Anderson, 2013 WL 3941079, at *4 n.2 (“Our opinion in Browning-Ferris contains no
indication that the question of jurisdiction was ever raised at any point in the course of
that litigation.”). Certainly, therefore, Browning-Ferris does not stand for the proposition
that challenges to this particular municipality’s competitive bid processes must be
pursued by declaratory judgment as opposed to through a writ of certiorari. That
particular question was not specifically entertained.

       Duracap’s contention with respect to Anderson and Duckworth requires a slightly
deeper look. As noted above, Duracap argues that these cases stand for the proposition
that an “internal appeal process” is required with respect to the administrative decision
being challenged if certiorari review is to be appropriately utilized. For the reasons
explained below, we disagree.

        In our view, having reviewed the relevant decisions in case law for what they hold
and do not hold, what remains important to the present inquiry is whether or not the
aggrieved party is seeking review of a decision that is the product of quasi-judicial action.
If so, a common law writ of certiorari is the proper vehicle by which to seek review. Our
understanding of this principle is not altered by the Anderson and Duckworth decisions

                                             -7-
relied upon most prominently in this appeal by Duracap. Respectfully, we are of the
opinion that Duracap’s reading of these cases misses the mark.

       In Anderson, a painting contractor filed a complaint against Nashville’s
Metropolitan Housing and Development Agency alleging that the agency had violated its
own rules by failing to choose him as the lowest bidder on a particular contract.
Anderson, 2013 WL 3941079, at *1. In response to the litigation brought against it, the
agency contended that the trial court lacked subject matter jurisdiction and argued that
the appropriate way to contest the contract award was by way of a common law writ of
certiorari. Id. The trial court agreed and dismissed the case, finding that the contractor
had filed his complaint after the sixty day time limit for seeking a writ had expired. Id.
When this Court affirmed the trial court, we noted that the availability of certiorari
review implies the existence of some sort of quasi-judicial procedure. Id. at *3. We
specifically observed that, although a quasi-judicial procedure was available to the
contractor, he had not pursued it:

             The [quasi-judicial procedure] for review in this case is found in
      Section VII of the MDHA handbook, which is titled “Appeals and
      Remedies.[”] It declares among other things, that “ . . . any protest against
      an award of a solicitation must be received from an offeror within fifteen
      (15) calendar days of award (Board approval, execution of contract or
      Purchase Agreement), or the protest will not be considered.” The
      handbook also describes a series of graduated steps the agency is required
      to follow to resolve such a protest once it is received, including the
      participation of the MDHA Executive Director.

             Anderson did not file a protest with the MDHA related to any of the
      awards he objected to. Consequently, he did not pursue available
      administrative remedies. Additionally, he did not comply with the sixty
      day requirement for the filing of a petition for writ of certiorari.
Id.

       As we read the opinion, certiorari review was the appropriate vehicle to challenge
the award in Anderson because there was a quasi-judicial procedure in place. Although
the aggrieved party did not take advantage of that procedure, had he pursued available
administrative remedies, which we described as providing for a quasi-judicial procedure,
further review should have then been by certiorari. Other cases have similarly held that
certiorari relief is the proper remedy when aggrieved parties have attempted to bypass
available quasi-judicial procedures which would themselves give rise to certiorari review.
See West, 246 S.W.3d at 580 (“It is clear that Moore & Associates was required to
exhaust its administrative remedies by appealing the zoning administrator’s decision to
the Board of Zoning Appeals. . . . [A] hearing before the Board would have resulted in a
record that the court could review under the common law writ of certiorari
                                           -8-
procedure[.]”). Although we recognize that a so-called “internal appeal process” was
available in Anderson, Duracap’s insistence on the necessity of such an appeal is
misplaced. Certiorari was not required in Anderson because certiorari, by rule, follows
from an “internal appeal process” at the administrative level. Rather, certiorari review
was required in Anderson because there was a quasi-judicial procedure in place which
would have made subsequent challenges to the resulting decision amenable to certiorari
review. Although this quasi-judicial procedure happened to exist by way of an “internal
appeal process,” the mere existence of an appeal was not the dispositive criterion. As is
evident from the guidance of a recent Tennessee Supreme Court case to which we will
turn shortly, the performance of quasi-judicial action is what remains important to the
availability, or lack thereof, of common law certiorari review.

        In Duckworth, a surgical pathology group filed an action in chancery court
claiming that the Regional Medical Center at Memphis (“the Med”) had violated its own
rules and acted arbitrarily by failing to award the pathology group a contract after a
request for proposals process. Duckworth Pathology Grp., Inc., 2014 WL 1514602, at
*1. Although the pathology group pursued relief by way of the statutes governing
petitions for certiorari, the Med filed a motion to dismiss asserting that the pathology
group had no basis for challenging its contracting decisions given the absence of a
contractual relationship between the parties. Id. at *1-2. During the hearing on its
motion to dismiss, the Med then orally moved to dismiss the case given the fact that the
pathology group’s chancery court filings were not verified as is required for petitions for
writs of certiorari. Id. at *2. Although the trial judge subsequently ruled orally that the
case would be dismissed for lack of subject matter jurisdiction, the pathology group filed
a motion to reconsider before a written order of dismissal was ever entered. Id. In its
motion to reconsider, the pathology group asserted that it was never required to file a writ
of certiorari to obtain relief against the Med; it further contended that a losing bidder in a
competitive bidding process is allowed to file for declaratory and equitable relief. Id. As
such, the pathology group argued that its action could not be dismissed for failure to
comply with the statutory requirements for a writ of certiorari. Id. The trial court
ultimately entered an order granting the motion to reconsider, whereby it retracted its
ruling of dismissal and stated that it would reset the Med’s pending motion to dismiss
after the pathology group filed an amended petition. Id. The pathology group
subsequently filed an amended pleading, omitting any reference to the certiorari statutes.
Id. at *3. However, the trial court eventually dismissed the case, citing several bases for
dismissal. Id.

       When the case was appealed to this Court, we considered, among other things,
whether the pathology group’s petition should have been considered as a petition for writ
of certiorari or a complaint for equitable relief. Although we referred to our opinion in
Anderson in an attempt to address this question, we ultimately found the result in
Anderson distinguishable. Whereas the aggrieved bidder in Anderson was required to
proceed by a petition for certiorari, we held that it was inappropriate to require the
                                            -9-
pathology group to do the same. Id. at *8. In explaining our reasoning on this issue, we
stated as follows:

               Despite the many similarities between Anderson and the case at bar,
       we find that Anderson is not controlling as to the precise issue before us. In
       deciding that a petition for certiorari was the exclusive remedy for the
       aggrieved party before it, the Anderson Court specifically took note of the
       fact that the certiorari statutes “refer to court review of an order or
       judgment, thus implying the existence of some sort of quasi-judicial
       procedure at the administrative level that the aggrieved party has recourse
       to before having to turn to the courts.” In Anderson, that quasi-judicial
       procedure was spelled out in the “Appeals and Remedies” section of the
       agency’s handbook, which set forth the process for an offeror to protest a
       contract award and described “a series of graduated steps the agency [was]
       required to follow to resolve such a protest once it is received[.]” In the
       case before us, however, the Med had no process for a rejected bidder to
       pursue an appeal. [The pathology group] simply wrote a letter to the Med
       notifying it of its objections to the selection process, and the Med
       responded with a letter stating that the Med disagreed with [the pathology
       group’s] position. Thus, there was no hearing or proceeding “of some sort
       of quasi-judicial procedure” that could be reviewed, and no record of the
       evidence. The provisions of the certiorari statutes “plainly presuppose that
       a judicial or quasi-judicial proceeding is the subject of review and that a
       ‘record’ of evidence, common in such proceedings, is available for
       certification to the reviewing court.” “The application of pre-defined
       standards, the requirement of a hearing, and the requirement of a record are
       earmarks of quasi-judicial proceedings.”

Id. (internal citations omitted).

       Although the Duckworth court noted that, unlike in Anderson, there was no
process for an appeal available to the pathology group, the upshot of this
acknowledgment was that, in the absence of any further process which would have
provided for a quasi-judicial procedure, certiorari review was improper given that the
decision complained of was not the product of quasi-judicial action. Again, as was noted,
“there was no hearing or proceeding . . . that could be reviewed, and no record of the
evidence.” Id.

       Notwithstanding Duracap’s desire to interpose an “appeal” requirement as a
condition precedent to common law certiorari review, certiorari review is not necessarily
contingent on the existence of an “internal appeal process” at the administrative level.
Although there is no question that the Anderson court cited to the existence of internal
administrative review as supporting the availability of certiorari review in that case,
                                         - 10 -
again, it is not the existence of an “appeal” that is significant. The importance of the
administrative appeal process referenced in Anderson lay in the fact that we considered
that process to constitute the quasi-judicial action that is a predicate to certiorari review.
See Brundage, 357 S.W.3d at 370 (noting that “a petition for writ of certiorari is the
appropriate way to obtain judicial review of ‘quasi-judicial’ decisions”).

       As suggested earlier, a recent decision from the Tennessee Supreme Court,
McFarland v. Pemberton, 530 S.W.3d 76 (Tenn. 2017), confirms our understanding that
a governmental body’s performance of a quasi-judicial function, as opposed to the
existence of some “internal appeal process” at the administrative level, controls the
availability of certiorari relief. In McFarland, the Tennessee Supreme Court addressed a
controversy surrounding a judicial election that took place on August 7, 2014 for the
Ninth Judicial District in East Tennessee. Id. at 80. One candidate for the election,
Michael Pemberton, filed a nominating petition with the Roane County Election
Commission (“the Election Commission”) on February 3, 2014. Id. Although Mr.
Pemberton’s nominating petition listed an address in Roane County as his residence, Mr.
Pemberton also owned a home in Knox County. Id. In addition to Mr. Pemberton, the
judicial seat at issue was sought by another candidate, William McFarland. Id.

       As is relevant to our discussion herein, a resident of the Ninth Judicial District
went to the Election Commission in the spring of 2014 to challenge Mr. Pemberton’s
candidacy based on residency. Id. After this resident filed a complaint, the Election
Commission conducted an independent investigation to determine whether Mr.
Pemberton was a resident of Roane County and set the matter for a public hearing at its
regular meeting on April 28, 2014. Id. at 80-81. Although Mr. Pemberton represented
himself at the hearing, Mr. McFarland did not participate. Id. at 81. At the conclusion of
the hearing, the Commissioners voted in favor of placing Mr. Pemberton on the ballot.
Id. at 82. Mr. Pemberton eventually won the ensuing judicial election by a narrow
margin over Mr. McFarland. Id. at 83.

        Although Mr. McFarland filed an election contest in chancery court on August 20,
2014, premised solely on questions pertaining to Mr. Pemberton’s residency, Mr.
Pemberton filed a motion in opposition to the action arguing that he was entitled to
judgment as a matter of law. Id. at 83-84. According to Mr. Pemberton, the suit was
barred, among other reasons, based on the 60-day statute of limitations applicable for
appeals of an administrative decision. Id. at 84. This position was also shared by
Election Commission members who had been sued in the chancery contest in their
official capacities. Id. The trial court ultimately dismissed Mr. McFarland’s complaint,
holding that the Election Commission hearing was a quasi-judicial act and that the
decision resulting from that hearing was a final administrative decision. Id. at 84-85.
According to the trial court, the proper method of challenging that decision was by filing
a petition for writ of certiorari. Id. at 85. Because Mr. McFarland had not done so within
sixty days of the Election Commission’s decision, his claim was considered time-barred.
                                              - 11 -
Id. Our Supreme Court ultimately affirmed, noting that “[b]ecause the Election
Commission was performing a quasi-judicial function, its decision was subject to judicial
review by common-law writ of certiorari.” Id. at 104.

       Were we to endorse the gloss Duracap requests that we place on the Anderson and
Duckworth decisions, our actions would be clearly inconsistent with our Supreme Court’s
holding in McFarland. There was simply no mention of an administrative appeal or
“internal appeal process” in McFarland, and Duracap’s insistence on such a requirement
is misplaced. As we have noted, the proper emphasis is on whether the governmental
body was performing a quasi-judicial function. The McFarland court did not
contemplate that certiorari review was inappropriate because there first needed to be
some type of appeal of the Election Commission’s decision; instead, it held that certiorari
review was proper because the determination made was the product of a quasi-judicial
function. It follows in this case that if the City Council was performing a quasi-judicial
function when it awarded the Project Contract to Rogers Group, its decision was subject
to judicial review by writ of certiorari. In our opinion, therefore, Duracap’s insistence on
an “internal appeal process” is but a red herring.6

       With the foregoing in mind, we are of the opinion that certiorari review was the
appropriate method of review in this instance. As the trial court noted when it entered its
order of partial dismissal:

               The Plaintiff is requesting this Court to review a decision made by a
        lower board or commission to determine if said board failed to act
        according to the ordinances already set forth regarding the lowest bidder
        contracts with the City. The decision that Plaintiff is requesting review of
        is an administrative decision of a lower board that is not “legislative” in
        nature, therefore not requiring a declaratory judgment to obtain judicial
        review of a “legislative” decision.

               The administrative decisions of the city council of Oak Ridge, in
        applying an existing ordinance to a particular situation are quasi-judicial in
        nature and therefore common law Writ of Certiorari is the proper method to
        seek review.

This is an accurate assessment of the nature of the City Council action about which
Duracap complains. Further, this case is not like Duckworth, where we noted that there
“was no hearing or proceeding ‘of some sort of quasi-judicial procedure’ that could be
        6
          We certainly do not question that, in many instances, an “internal appeal process” at the
administrative level will be how a governmental body or board employs quasi-judicial procedure and
performs a quasi-judicial function. With that said, the mere absence of an administrative appeal does not
countenance against certiorari relief when the administrative decision is itself the product of quasi-judicial
action.
                                                   - 12 -
reviewed, and no record of the evidence.” See Duckworth Pathology Grp., Inc., 2014
WL 1514602, at *8. Here, the issue of the Project Contract was heard at an open meeting
of the City Council, and a record of the proceedings exists for review.

        Indeed, in this particular case, the City Council’s action in awarding the Project
Contract to Rogers Group constitutes a quasi-judicial act. In addition to the fact that the
City Council’s decision was subject to pre-defined standards codified in the municipal
code, the City Council’s determination was made with opportunity to be heard on the
issue, after the proposed resolution awarding the Project Contract to Duracap had been
set on the City Council’s agenda. Although Duracap did not participate in the meeting
when the issue of the Project Contract was considered and heard, ostensibly because it
believed it would secure the award based on its low bid, a representative from Rogers
Group was present and participated. Moreover, a number of citizens shared concerns and
comments during the consideration of the issue. Finally, a record of the proceedings
exists, which enables a court to review whether or not the City Council acted permissibly
in awarding the Project Contract to Rogers Group. Review by the common law writ of
certiorari was appropriate in light of these considerations establishing the performance of
quasi-judicial administrative action, and the trial court did not err in failing to hold
otherwise. See Brundage, 357 S.W.3d at 370 (noting that a hearing, record, and
application of pre-defined standards are earmarks of quasi-judicial proceedings).

        In expressing our opinion on this issue, we certainly do not hold that the City
Council’s action in this matter was appropriate or would have been sustained upon proper
certiorari review.7 We simply hold that, given the existence of pre-defined standards by
which the City Council’s decision can be adjudged, public consideration of the issue, the
opportunity to participate in the public hearing, and the availability of a record of the
proceedings regarding the decision, common law certiorari was the proper vehicle for
review. It therefore follows that the original causes of action asserted by Duracap were
appropriately dismissed. Further, because Duracap did not appeal the trial court’s
determination that its petition was not properly verified as required for writs of certiorari,
the trial court’s final judgment of dismissal shall remain undisturbed.




        7
          Again, whether the standards governing the City Council’s action were appropriately applied or
considered remains another question. Such concerns pertain to the outcome of certiorari review, not
whether a writ of certiorari is the proper method by which to seek judicial review. Obviously, a
governmental body’s actions will not survive scrutiny under certiorari review if they are not supported by
material evidence or can otherwise be considered illegal, arbitrary, or capricious. See Waste Connections
of Tenn., Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., No. M2012-02290-COA-R3-CV, 2013 WL
1282011, at *6-8 (Tenn. Ct. App. Mar. 27, 2013) (reversing trial court’s dismissal of common law
petition for writ of certiorari when “factors and criteria not discussed, [and] no materials or evidence were
introduced into the record prior to the vote on the Resolution”).
                                                   - 13 -
                                            II.

       In closing, we briefly comment on Duracap’s claimed error that the trial court
erred in granting the City’s motion for a protective order. As an initial matter, as we have
already noted, it does not appear that the trial court ever specifically ruled on the motion
for a protective order. Although Duracap’s brief recites that “[t]he trial court held that
Duracap could not conduct discovery to support its challenge,” no citation to the record is
offered in support of this proposition. Therefore, even assuming the record did contain a
ruling on the motion for protective order (of which we are presently unaware), Duracap’s
failure to provide appropriate citations regarding this matter results in a waiver of the
issue. See Tenn. Ct. App. R. 6(a)(4) (noting that the written argument shall contain “[a]
statement of each determinative fact relied upon with citation to the record where
evidence of each such fact may be found”); Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct.
App. 2000) (“Plaintiff’s failure to comply with the Rules of Appellate Procedure and the
rules of this Court waives the issues for review.”). Regardless, the appropriateness of any
protective order regarding discovery is a pretermitted concern given our holding herein
and Duracap’s failure to challenge the basis upon which its certiorari action was
dismissed.

                                     CONCLUSION

       For the foregoing reasons, the judgment of the trial court is hereby affirmed.



                                                    ________________________________
                                                    ARNOLD B. GOLDIN, JUDGE.




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