15 S.W.3d 466
Tenn. Ct. App.
1999

Hоward TURNER, Petitioner/Appellant, v. Shirley CAMPBELL, Respondent/Appellee.

Court of Appeals of Tennessee, Middle Section, at Nаshville.

Sept. 29, 1999.

Permission to Appeal Denied by Supreme Court March 6, 2000.

15 S.W.3d 466

the owner of the newly acquired liquor business, he intended to be the operator of this business.7 Based on all of the evidence in the record, we are satisfied that the intended effect of the parties’ ‍‌‌​​​​‌‌​‌​​‌‌‌​‌​​‌‌​‌​​​​​​​​​​​‌​‌‌‌​​‌‌​‌​​‌‍agreement was to allow Mr. Ledbetter to operate a second retail business. With the enactment of section 57-3-406, the Tennessee General Assembly clearly established a public policy against this result, expressly prohibiting such activity.

Because the parties’ April 3, 1998 “Sales Agreement” was executed in violation of section 57-3-406, we conclude that it is void and unenforceable. Consistent with the aforementioned authority, the trial court should have left thе Ledbetters and Ms. Townsend where it found them, refusing to enforce their illegal agreement. Thus, we reverse the trial court‘s order requiring Ms. Tоwnsend to specifically perform her obligations under this agreement. In light of this ruling, we find it unnecessary to address the remaining issues raised by Ms. Townsend on appeal. The costs of this appeal are assessed to Mr. and Mrs. Ledbetter, for which execution may issue if nеcessary.

HIGHERS, J., not participating.

HAYES, Sp. J., concurs.

Howard Turner, Clifton, pro se.

Tom Anderson, Jackson, for Respondent/Appellee.

OPINION

BEN H. CANTRELL, Presiding Judge, M.S.

The issue in this case is whether a petition for certiorari states a cause of action when it seeks a review of the punishment imposed for violating prison ‍‌‌​​​​‌‌​‌​​‌‌‌​‌​​‌‌​‌​​​​​​​​​​​‌​‌‌‌​​‌‌​‌​​‌‍rules and names only the employee of the private company running the prison. We hold that it does not, and we affirm the order of the lower court.

I.

Howard Turner, a prisoner at the South Central Correctionаl Facility (SCCF), was cited for participation in “Security Threat Group Activity.” After a hearing, the SCCF Disciplinary Board recommended thаt Mr. Turner be sentenced to ten days punitive segregation, suspended for sixty days, a $5.00 fine, and six months package restriction. Mr. Turner aрpealed the sentence through the stages provided by the Department of Correction, where the sentence was finally affirmed by the Commissioner.

Mr. Turner filed this petition for certiorari and named as the only respondent Shirley Campbell, an employеe of Corrections Corporation of America, the private operator of the prison. The petition alleged that Ms. Campbell was the chair of the Disciplinary Board that imposed punishment on Mr. Turner; that the Board denied him a continuance; that the proceeding was not observed by the Commissioner‘s designee as required by statute for a Class A infraction; that the Board rеlied on a confidential informant; and that the Board failed to follow various procedural rules.

The petition sought a reviеw of the Board‘s decision and a holding that the decision was unreasonable, arbitrary, capricious, and not legally sufficient. Ms. Campbell filed a motion to dismiss pursuant to Rule 12.02(6), Tenn.R.Civ.Proc. The Wayne County Chancery Court granted the motion.

II.

In a privately operated state prison, the employees of the private сompany are prohibited from “Granting, denying, or ‍‌‌​​​​‌‌​‌​​‌‌‌​‌​​‌‌​‌​​​​​​​​​​​‌​‌‌‌​​‌‌​‌​​‌‍revoking sentence credits; placing an inmate under less restrictive custody; or taking any disciplinary action.” Tenn. Code Ann. Section 41-24-110(5). Thus, the Commissioner of Corrections has formulated a policy to govern the imposition of punishment for violating prison rules in a privately operated prison. At SCCF, a panel of three staff members hears the charge and recommends punishment to the Commissioner‘s designee, a TDOC employee authorized by the Commissioner to serve as the approving authority for disciplinary punishments. TDOC Policy # 9502.01(IV)(C). If the charge is serious enough (a Class A or B infraction) the Commissioner‘s designee must personally observe the proceeding and approve or modify the recommendations of the disciplinary board. TDOC Policy # 9502.01 (VI)(D)(2).1

The imposition of punishment is reviewed by the Regional Administrator, TDOC Policy # 9502.01(VI)(E)(1)(b), and the prisoner has a right to appeal to the Commissioner of Corrections. TDOC Policy # 9502.01(VI)(E)(2)(a). The complaint in this case alleges that Mr. Turner followed the procedure set forth in the TDOC policy and that his punishment was ultimately affirmed by the Commissioner.

In Mandela v. Campbell, 978 S.W.2d 531 (Tenn.1998), our Supreme Court reviewed the procedures in the TDOC policy and held that the procedures satisfied the requirements of Tenn. Code Ann. Section 41-24-110(5). The court based its decision on the fact that the disciplinary “board‘s recommendation as to punishment was merely a recommendation, ‍‌‌​​​​‌‌​‌​​‌‌‌​‌​​‌‌​‌​​​​​​​​​​​‌​‌‌‌​​‌‌​‌​​‌‍and actual discipline was not imposed until the TDOC representative reviewed the case and approved the board‘s recommendation.” 978 S.W.2d at 533. We think it necessarily follows that a petition for сertiorari directed to the chair of the disciplinary board, an employee of a private corporation having no power to impose punishment upon the petitioner, fails to state a cause of action against the respоndent. The writ should be directed to the governmental agency that is responsible for the actions of which the petitioner cоmplains. If the Commissioner‘s designee did not observe the proceedings, as required by the TDOC policy, that reason for relief should bе asserted against the government.

The judgment of the court below is affirmed and the cause is remanded to the Chancery Court of Wayne County for any further proceedings necessary. Tax the costs on appeal to the appellant.

BEN H. CANTRELL, Presiding Judge, M.S.

KOCH, J., and CAIN, J., concur.

Notes

1
This opinion follows the citations to the rules of the Depаrtment of Correction as found in the appellee‘s ‍‌‌​​​​‌‌​‌​​‌‌‌​‌​​‌‌​‌​​​​​​​​​​​‌​‌‌‌​​‌‌​‌​​‌‍brief. We understand the organization of these rules has been modified since the proceedings complained of.
7
It was Mr. Ledbetter who obtained the necessarily applications from the Tennessee Alcoholic Beverage Commission and plaсed a three-day notice in the local newspaper on behalf of his wife. Additionally, Mr. Ledbetter spoke to Ms. Townsend on thе telephone on more than one occasion regarding the possibility of a stock sale and contacted an accountant in an effort to accommodate Ms. Townsend‘s request for this type of sale. Although Mrs. Ledbetter signed a letter notifying Ms. Tоwnsend of the scheduled closing, it appears as if this letter was actually prepared and mailed by Mr. Ledbetter. Mr. Ledbetter also applied for and obtained a loan in order to finance the purchase of Ms. Townsend‘s liquor business. Finally, Mr. Ledbetter, rather than Mrs. Ledbetter, attended the scheduled closing at Union Planters Bank.