Session March 27, 2018
from the Chancery Court for Putnam County No. 2015-232 Larry
B. Stanley, Jr., Judge
police officer appeals the denial of her petition for a writ
of certiorari and the denial of her motion for relief from a
final judgment related to the termination of her employment.
Here, the evidence was undisputed that the former police
officer neglected her duties, failed to follow the directive
of a "superior" and was repeatedly informed about
various instances of misconduct. As such, the city
administrator's decision to uphold Appellant's
dismissal was supported by material evidence and was neither
arbitrary, illegal, nor capricious.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed and Remanded
Kenneth S. Williams, and Cynthia A. Wilson, Cookeville,
Tennessee, for the appellant, Dana Looper.
H. Rader, IV, Cookeville, Tennessee, for the appellee, City
Steven Stafford, J., delivered the opinion of the court, in
which Arnold B. Goldin, and Kenny Armstrong, JJ., joined.
STEVEN STAFFORD, JUDGE
Dana Looper ("Appellant") was hired as a police
officer in 2008 for Defendant/Appellee the City of Algood
("the City"). In 2015, Appellant served in the rank
of Sergeant, specifically as the City Police Department's
Public Information Officer. An incident occurred on October
5, 2015, in which Appellant failed to perform tasks assigned
by the City Administrator, Keith Morrison ("City
Administrator"). The City Administrator immediately
placed Appellant on administrative leave with pay. Following
this incident, on October 12, 2015, the Chief of the Algood
Police Department, Gary Harris ("Police Chief")
placed a letter in Appellant's personnel file detailing
several infractions allegedly committed by Appellant in 2015.
The letter recommended that Appellant be terminated due to
these infractions. The police chief later admitted that the
infractions contained in the letter were not documented in
accordance with the Personnel Rules and Regulations of the
City of Algood ("Personnel Handbook"). Prior to the
October 2015 letter, Appellant had no documented disciplinary
October 14, 2015, the Police Chief provided Appellant with
written notice of the termination of her employment. The
letter noted that the reason for her suspension was
insubordination and "failure to follow the directives of
your department head." With regard to dismissal,
however, the letter stated that the reasons "include,
but may not be limited to, inefficiency in the performance of
your duties, violating or disregarding directives given to
you by your supervisor(s) and insubordination." The
letter finally advised Appellant that she was entitled to
review of the dismissal decision in accordance with the
indeed chose to appeal her dismissal to the City
Administrator as provided by the Personnel Handbook. An
evidentiary hearing occurred on November 13, 2015. The Police
Chief was the only witness. According to the Police Chief,
Appellant had previously been orally reprimanded on several
occasions due to failing to wear her bulletproof vest,
failing to keep up with Tennessee Incident Based Reporting
System (TIBRS") reports, and other misconduct as
detailed in the October 12, 2015 letter placed in
Appellant's file. The Police Chief explained that it was
generally his practice to speak with his officers concerning
infractions, hopeful that the oral reprimands alone would be
sufficient to correct the behavior. The Police Chief admitted
that he did not contemporaneously memorialize the oral
reprimands by placing memos regarding the reprimands in
Appellant's file at the time of the misconduct.
regard to the incident on October 5, 2012, the Police Chief
testified that Appellant had been directed by her Superior
Officer to go with other officers to another city to pick up
police cars. Upon arriving at work, the City Administrator
informed Appellant that she would need to stay behind to
catch up on TIBRS reports, which are required by law to be
completed. See Tenn. Code Ann. § 38-10-102(a)
("All state, county, and municipal law enforcement and
correctional agencies, and courts, shall submit to the
director of the Tennessee bureau of investigation reports
setting forth their activities in connection with law
enforcement and criminal justice, including uniform crime
reports and reports of law enforcement-related
deaths."); Tenn. Code Ann. § 38-10-105 ("Any
officer or official mentioned in this chapter who shall have
been notified and refuses to make any report or do any act
required by any provision of this chapter shall be deemed
guilty of nonfeasance of office and subject to removal
According to the Police Chief, Appellant's position as
Public Information Officer included the duty to complete the
reports; Appellant, however, had become approximately eighty
reports behind on the day of the incident and had previously
been orally informed that she needed to catch up on the
reports. The City Administrator therefore directed Appellant
to complete the reports rather than travel to another city.
Because of her position as the Public Information Officer,
the Police Chief testified that Appellant often worked with
the City Administrator and had never before expressed
confusion or concern whether she was required to follow his
directives. In this instance, however, Appellant responded
that she would "respectfully decline" the City
Administrator's directive. According to the Police Chief,
Appellant's direct superior officer heard the initial
exchange, but he did not intervene in the incident.
the City Administrator issued a ruling affirming
Appellant's dismissal. According to the City
The pattern of behavior you exhibited as a Sergeant in the
Algood Police Department was not acceptable conduct for an
officer in this department. Based on the fact that you were
insubordinate with a supervisor on multiple occasions and
neglected your duties to complete TIBRS as required by law,
your termination is upheld[.]
December 2, 2015, Appellant filed a timely and proper
petition for a writ of certiorari, which was later amended by
agreement of the parties. The trial court issued the writ on
December 2, 2015, and the record from the prior hearing was
thereafter filed with the trial court. The original trial
judge that was assigned this matter entered an order of
recusal on April 7, 2016, and the Honorable Judge Larry B.
Stanley was designated by the Tennessee Supreme Court to hear
this case. On August 5, 2016, the trial court ruled that the
termination of Appellant's employment was supported by
material evidence and that the decision was not arbitrary,
illegal, or capricious. Appellant thereafter appealed to this
this appeal was pending, upon motion of Appellant, this Court
remanded to the trial court to allow Appellant to pursue
relief under Rule 60.02 of the Tennessee Rules of Civil
Procedure. Appellant's Rule 60.02 motion was filed in the
trial court on July 13, 2017. In support of relief under Rule
60.02, Appellant sought to admit a videotape, audiotapes,
pictures, and an affidavit of a former police officer that
she argued supported her assertion that the dismissal was
based upon ulterior motives of the Police Chief. Appellant
asserted that this evidence was unknown to her or her counsel
at the time of the initial hearing in the trial court.
Ultimately, the trial court denied the motion, ruling that
"[n]o fraud, previously undiscoverable evidence, nor any
other reason has been shown by [Appellant] that would warrant
this [c]ourt granting her request." The parties were
thereafter permitted to file supplemental briefs concerning
the Rule 60.02 motion.
raises two issues in this case, which are generally taken
from her brief:
1. Whether the trial court erred finding and holding that the
termination decision was not arbitrary, capricious or
illegal, did not constitute an abuse of discretion, was based
upon an actual and factual basis, and was supported by
2. Whether the trial court abused its discretion when it
denied Appellant's Rule 60.02 motion for relief from
court's review of decisions made by administrative bodies
is obtained by filing a petition for a common law writ of
certiorari. See Tenn. Code Ann. § 27-8-101;
see also Harding Acad. v. The Metro. Gov't of
Nashville and Davidson Cty., 222 S.W.3d 359, 363 (Tenn.
2007) (citing McCallen v. City of Memphis, 786
S.W.2d 633, 639 (Tenn. 1990)). "It is well-settled that
the scope of judicial review under a common law writ of
certiorari is 'quite limited.'" Dill v. City
of Clarksville, 511 S.W.3d 1, 9 (Tenn. Ct. App. 2015)
perm. app. denied (Oct. 15, 2015) (quoting Heyne
v. Metro. Nashville Bd. of Educ., 380 S.W.3d 715, 728
(Tenn. 2012)). As such, judicial review is limited in
determining "whether the . . . board exceeded its
jurisdiction; followed an unlawful procedure; acted
illegally, arbitrarily, or fraudulently; or acted without
material evidence to support its decision." Lafferty
v. City of Winchester, 46 S.W.3d 752, 759 (Tenn. Ct.
App. 2000) (citations omitted).
the sufficiency of evidence of the board's decision is
challenged using a common law writ of certiorari, "the
sufficiency of the evidence is a question of law" that
the court must review de novo with no presumption of
correctness as to the board's finding. Id.
(citing Wilson Cty. Youth Emergency Shelter, Inc. v.
Wilson Cty., 13 S.W.3d 338, 342 (Tenn. Ct. App. 1999)).
Under the limited certiorari standard, "courts may not
(1) inquire into the intrinsic correctness of the lower
tribunal's decision, (2) reweigh the evidence, or (3)
substitute their judgment for that of the lower
tribunal." State ex rel. Moore & Assocs. v.
West, 246 S.W.3d 569, 574 (Tenn. Ct. App. 2005)
(internal citations omitted). The common law writ of
certiorari is therefore "not a vehicle which allows the
courts to consider the intrinsic correctness of the
conclusions of the administrative decision maker."
Id. (citing Powell v. Parole Eligibility Rev.
Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1997);
Yokley v. State, 632 S.W.2d 123, 126 (Tenn. Ct. App.
standard "envisions that the court will review the
record independently to determine whether it contains
'such relevant evidence that a reasonable mind might
accept as adequate to support a rational conclusion."
Lafferty, 46 S.W.3d at 759 (quoting Hedgepath v.
Norton, 839 S.W.2d 416, 421 (Tenn. Ct. App. 1992)). Said
another way, "'the reviewing court is limited to
asking whether there was in the record before the
fact-finding body any evidence of a material or
substantial nature from which that body could have,
by reasoning from that evidence, arrived at the
conclusion of fact which is being reviewed.'"
Massey v. Shelby Cty. Retirement Bd., 813 S.W.2d
462, 465 (Tenn. Ct. App. 1991) (quoting Ben Cantrell,
Review of Administrative Decisions by Writ of Certiorari
in Tennessee, 4 Mem. St. U. L. Rev. 19, 29-30 (1973)
(emphasis in original)). If there is such evidence present in
the record, the court must affirm the administrative
body's decision. Id.
first asserts that the trial court erred in finding that the
termination decision was supported by material evidence and
not arbitrary, capricious, or illegal. Pursuant to the Algood