IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
ASSIGNED ON BRIEFS MAY 4, 2006
JAMES JACKSON v. TENNESSEE DEPARTMENT OF CORRECTION, ET
AL.
Direct Appeal from the Chancery Court for Lauderdale County
No. 13,013 Martha B. Brasfield, Chancellor
No. W2005-02239-COA-R3-CV - Filed May 31, 2006
A prisoner in the custody of the Tennessee Department of Correction filed a pro se petition for
common law writ of certiorari in the trial court seeking to contest the prison disciplinary board’s
findings. The department filed a motion to dismiss for lack of subject matter jurisdiction, citing the
petition’s lack of notarization, its failure to state that it was the first application for the writ, and the
prisoner’s failure to file it within sixty (60) days of the administrative action. The trial court granted
the department’s motion to dismiss. The prisoner filed a motion for a new trial asserting that he
complied with Tennessee Rule of Civil Procedure 5.06. The trial court denied the motion. The
prisoner timely filed an appeal to this court. We affirm the dismissal of the petition.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.
James Jackson, Tiptonville, TN, pro se
Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Michael
B. Schwegler, Assistant Attorney General, Nashville, TN, for Appellee
OPINION
I.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
James Jackson (“Jackson” or “Appellant”) currently is serving a prison sentence following
his conviction for armed robbery. See State v. Jackson, 1989 Tenn. Crim. App. LEXIS 126, at *1
(Tenn. Crim. App. Feb. 22, 1989). In January of 2004, Jackson was incarcerated at West Tennessee
State Penitentiary in Henning, Tennessee. On January 7, 2004, prison officials placed Jackson in
administrative segregation pending an investigation of an alleged disciplinary offense. On January
14, 2004, Jackson, along with five other inmates, received a disciplinary report charging them with
violating the Money Laundering Act of 1996. See TENN . CODE ANN . § 39-14-901 et seq. (2003).
The prison disciplinary board convened a hearing on January 21, 2004, and the board subsequently
found Jackson guilty of the offense charged. As a result, he was placed in administrative
segregation. On January 30, 2004, Jackson appealed the board’s decision to the warden of the
prison. On February 11, 2004, the warden affirmed the board’s decision and denied Jackson’s
appeal.
On May 26, 2004, Jackson filed a pro se Petition for Writ of Certiorari in the Chancery Court
of Lauderdale County against the Tennessee Department of Correction (“TDOC” or “Appellee”)
seeking to challenge various aspects of the board’s decision. On September 13, 2004, TDOC filed
a motion, pursuant to Tennessee Rule of Civil Procedure 12.02(1), seeking to dismiss Jackson’s
petition (1) for lack of subject matter jurisdiction because it was filed more than sixty (60) days
beyond the final disposition of his case by the administrative body, (2) the petition did not state that
it was Jackson’s first application for a writ of certiorari, and (3) the petition was not property
executed because it was not notarized.
On September 30, 2004, the trial court entered an order dismissing Jackson’s petition,
holding:
The Petition in this case is neither signed nor notarized. It
was filed 103 days after his administrative appeal, and it did not state
that it was the first application for the writ. Pursuant to the opinion
in [Bowling v. Tennessee Board of Paroles, No. M2001-00138-COA-
R3-CV, 2002 Tenn. App. LEXIS 291 (Tenn. Ct. App. Apr. 30,
2002)], this Court finds that this case should be dismissed because the
petition fails to comply with the requirements of Tenn. Code Ann. §
27-8-106.
Jackson subsequently filed numerous motions with the trial court seeking, in essence, to set aside
the order. Included in these motions was a motion to amend his petition and a motion for a new trial.
On August 26, 2005, the trial court entered an order denying Jackson’s motion for a new trial and
to vacate the judgment.
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Jackson timely filed a pro se notice of appeal to this Court presenting the following issues
for our review:
1. Whether the trial court erred when it dismissed Jackson’s petition because it was not
notarized;
2. Whether the trial court erred when it dismissed the petition for its failure to state that it was
the first application for a writ of certiorari; and
3. Whether the trial court erred when it dismissed the petition for Jackson’s failure to file the
petition in a timely manner.
For the reasons set forth more fully herein, we affirm the trial court’s decision to dismiss the
Appellant’s petition.
II.
DISCUSSION
When reviewing a motion to dismiss for lack of subject matter jurisdiction, we employ
the following standard of review:
A motion to dismiss for lack of subject matter jurisdiction
falls under Tennessee Rule of Civil Procedure 12.02(1). The concept
of subject matter jurisdiction involves a court’s lawful authority to
adjudicate a controversy brought before it. See Meighan v. U.S.
Sprint Communications Co., 924 S.W.2d 632, 639 (Tenn. 1996);
Standard Sur. & Casualty Co. v. Sloan, 180 Tenn. 220, 230, 173
S.W.2d 436, 440 (1943). Subject matter jurisdiction involves the
nature of the cause of action and the relief sought, see Landers v.
Jones, 872 S.W.2d 674, 675 (Tenn. 1994), and can only be conferred
on a court by constitutional or legislative act. See Kane v. Kane, 547
S.W.2d 559, 560 (Tenn. 1977); Computer Shoppe, Inc. v. State, 780
S.W.2d 729, 734 (Tenn. Ct. App. 1989). Since 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.
See Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).
Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).
The following statement can be found at the end of Jackson’s petition: “I certify that the
statements contained herein are true based upon my knowledge, belief and best information.” Below
this statement is Jackson’s signature. On appeal, Jackson argues that the trial court erred in
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dismissing his petition because it was not notarized.1 Further, he asserts that the trial court erred in
dismissing his petition because it did not state that it was his first application for the writ.
This Court recently addressed the very issue presented for review in this case. In Wilson v.
Tennessee Department of Correction, No. W2005-00910-COA-R3-CV, 2006 Tenn. App. LEXIS
91, at *3 (Tenn. Ct. App. Feb. 13, 2006), the prisoner filed a pro se petition for common law writ
of certiorari that contained a clause “verifying the contents of the petition were true and correct to
the best of his knowledge.” The prisoner did not, however, have the petition notarized. Id. In
upholding the trial court’s decision to dismiss the petition, we stated:
The Tennessee Constitution provides as follows:
The judges or justices of the Inferior Courts of Law
and Equity, shall have the power in all civil cases, to
issue writs of certiorari to remove any cause or the
transcript of the record thereof, from any inferior
jurisdiction, into such court of law, on sufficient
cause, supported by oath or affirmation.
TENN . CONST . art. 6, § 10 (emphasis added). In accordance with this
constitutional provision, the legislature provides that “the judges of
the inferior courts of law have the power, in all civil cases, to issue
writs of certiorari to remove any cause or transcript thereof from any
inferior jurisdiction, on sufficient cause, supported by oath or
affirmation.” TENN . CODE ANN . § 27-8-104(a) (2000) (emphasis
added). “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)
(emphasis added). Wilson’s petition states that it is his first
application for a writ of certiorari. The last page of the petition
entitled “Petitioner’s Verification Under Oath Subject to Penalty of
Perjury” states that the contents of the petition are true and correct,
however, it is not notarized. On appeal, TDOC argues that the trial
court acted correctly in dismissing the petition since the verification
page is not notarized, therefore, it does not comply with the
Tennessee Constitution or sections 27-8-104 and 27-8-106 of the
Tennessee Code.
A requirement that a petitioner swear to the contents of his
petition under oath necessarily connotes that the petitioner is first
1
The trial court’s order states that the petition was “neither signed nor notarized.” The petition in the record
before this Court, however, contains Jackson’s signature.
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administered an oath and then states in accordance with that oath that
the contents of the petition are true. See D.T. McCall & Sons v.
Seagraves, 796 S.W.2d 457, 462-63 (Tenn. Ct. App. 1990).
Notarization and verification are distinct concepts. Underwood v.
Tenn. Dep’t of Corr., No. W2004-01630-COA-R3-CV, 2005 Tenn.
App. LEXIS 23, at *5 (Tenn. Ct. App. Jan. 20, 2005), appeal denied,
2005 Tenn. LEXIS 723 (Tenn. Aug. 22, 2005). “[A] verification
establishes the truth of the document’s contents,” D.T. McCall &
Sons, 796 S.W.2d at 463, “whereas notarization acknowledges the
proper execution of a document,” Underwood, 2005 Tenn. App.
LEXIS 23, at *5. When discussing these unique concepts, the
Tennessee Court of Criminal Appeals has noted the following:
In Tennessee, acknowledged documents are
ones which have been notarized by a notary public or
acknowledged in the presence of an official. See
generally Cohen, Tennessee Law on Evidence §
9.02[10] (4th ed. 2000). As defined in Black’s Law
Dictionary, “verify” means “to prove to be true; to
confirm or establish the truth or truthfulness of.”
Black’s Law Dictionary 1561 (6th ed. 1990). Black’s
further explains, as an example of verification, that “a
verified complaint typically has an attached affidavit
of plaintiff to the effect that the complaint is true.” Id.
There is no doubt that the essence of a verification is
truthfulness of the document’s contents. As Judge
Koch explained in an opinion from the Court of
Appeals, “an acknowledgment establishes the proper
execution of the document while a verification
establishes the truth of the document's contents.” D.
T. McCall & Sons v. Seagraves, 796 S.W.2d 457, 463
(Tenn. Ct. App. 1990)(recognizing a distinction in
Tennessee between an acknowledgment and a
verification); see also Varner v. Moore, 1994 Tenn.
App. LEXIS 685, No. 03 A01-9405-CV-00171, 1994
WL 666902, at *2 (Tenn. Ct. App. 1994)(discussing
the difference between an acknowledged document
and a verified document for purposes of
self-authentication pursuant to Rule 902(8) of the
Tennessee Rules of Evidence).
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Montague v. State, No. E2000-01330-CCA-R3-PC, 2001 Tenn. Crim.
App. LEXIS 692, at *3-4 (Tenn. Crim. App. Sept. 4, 2001) (no perm.
app. filed).
In order for a petition for a common law writ of certiorari to
be valid, the petitioner must verify the contents of the petition and
swear to the contents of the petition under oath, typically by utilizing
a notary public. See TENN . CODE ANN . §§ 27-8-104(a), -106 (2000);
Underwood, 2005 Tenn. App. LEXIS 23, at *7-8; Bowling v. Tenn.
Bd. of Paroles, No. M2001-00138-COA-R3-CV, 2002 Tenn. App.
LEXIS 291, at *9 (Tenn. Ct. App. Apr. 30, 2002). As the Tennessee
Court of Criminal Appeals noted, “merely swearing to having
knowledge of the allegations contained in the petition is insufficient
to qualify as a verification under oath. To conclude otherwise would
allow a petitioner to file a petition which knowingly contained
frivolous, false, and even perjured allegations or statements of facts.”
Montague, 2001 Tenn. Crim. App. LEXIS 692, at *5. Subject matter
jurisdiction “can only be conferred on a court by constitutional or
legislative act.” Northland Ins. Co. v. State, 33 S.W.3d 727, 729
(Tenn. 2000) (citing Kane v. Kane, 547 S.W.2d 559, 560 (Tenn.
1977); Computer Shoppe, Inc. v. State, 780 S.W.2d 729, 734 (Tenn.
Ct. App. 1989)). The Tennessee Constitution and the statutes
promulgated by the legislature require that a petition for a writ of
common law certiorari be made under oath. See TENN . CONST . art. 6,
§ 10; TENN . CODE ANN . §§ 27-8-104(a), -106 (2000). While
Wilson’s petition contained his verification that its contents were true
and correct to the best of his knowledge, he failed to have the petition
notarized by a notary public. Accordingly, the trial court did not err
in dismissing his petition for a lack of subject matter jurisdiction. Cf.
Underwood, 2005 Tenn. App. LEXIS 23, at *7-8 (holding that a trial
court correctly dismissed a prisoner’s petition for a writ of common
law certiorari when the prisoner failed to verify his petition, therefore,
the trial court lacked subject matter jurisdiction); Bowling, 2002
Tenn. App. LEXIS 291, at *9 (ruling that a prisoner’s petition for a
writ of common law certiorari was properly dismissed when the
prisoner failed to verify the contents of his petition).
Id. at *8–13 (footnote omitted). Accordingly, we find that the trial court properly dismissed
Jackson’s petition for its lack of notarization.
We are mindful of the fact that the prisoner in Wilson did state in his petition that it was his
first application for the writ. Wilson, 2006 Tenn. App. LEXIS 91, at *3. No such statement can be
found in Jackson’s petition. As this statement is required by statute to be in the petition, see TENN .
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CODE ANN . § 27-8-106 (2000), we find that the trial court did not err when it dismissed the petition
for this reason as well.
Jackson also argues that the trial court erred in dismissing his petition for being filed more
than sixty (60) days beyond the administrative order. After reading Jackson’s brief, it appears as
though he is arguing on appeal that his petition was filed in a timely manner. He asserts that he
mailed the petition before May 26, 2004, but the clerk of the trial court “returned the petition and
accompanying documents to petitioner with instructions to return it with a 6 month certified trust
fund statement of his account.” Jackson asserts that, pursuant to Tennessee Rule of Civil Procedure
5.06, his petition is timely. These same arguments were made by Jackson in the motion for a new
trial he presented to the trial court.
We addressed a similar issue in Wilson as well, stating:
The procedural framework for reviewing a case pursuant to a
common law writ of certiorari is found in Chapter 9, Title 27 of the
Tennessee Code. Fairhaven Corp. v. Tenn. Health Facilities
Comm’n, 566 S.W.2d 885, 886 (Tenn. Ct. App. 1976). As a result,
Wilson was required to file his petition for a writ of common law
certiorari “within sixty (60) days from the entry of the order or
judgment.” TENN . CODE ANN . § 27-9-102 (2000). For purposes of
ascertaining the date on which papers are filed with a court, the
Tennessee Rules of Civil Procedure provide as follows:
If papers required or permitted to be filed
pursuant to the rules of civil procedure are prepared
by or on behalf of a pro se litigant incarcerated in a
correctional facility and are not received by the clerk
of the court until after the time fixed for filing, filing
shall be timely if the papers were delivered to the
appropriate individual at the correctional facility
within the time fixed for filing. . . . Should timeliness
of filing or service become an issue, the burden is on
the pro se litigant to establish compliance with this
provision.
TENN . R. CIV . P. 5.06 (2005) (emphasis added).
In his motion to strike, Wilson stated that he “put his Petition
in the Mail on or about December 2nd, 2004.” Giving Wilson the
benefit of the latest possible date on which the statute of limitations
began to run (i.e. the date the Commissioner denied his appeal, or
November 1, 2004), Wilson has failed to carry his burden of proving
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that he filed his petition in a timely manner. While he did state in his
motion to strike that he mailed the petition on December 2, 2004, the
record itself proves otherwise. The affidavit of indigency, which
accompanied his petition and was filed by the clerk of the chancery
court on the same day as the petition, indicates that Wilson did not
sign the document and have it notarized until December 14, 2004.
Wilson offered no proof to explain this discrepancy. Thus, Wilson
failed to prove that he complied with Rule 5.06 of the Tennessee
Rules of Civil Procedure.
We are left with the fact that Wilson filed his petition for a
writ of common law certiorari on January 11, 2005, which is beyond
the sixty (60) day period allowed by the applicable statute. The sixty
(60) day statute of limitations set forth in section 27-9-102 of the
Tennessee Code is mandatory and jurisdictional, and the failure to file
a petition within that period of time deprives the court of subject
matter jurisdiction. See Gore v. Tenn. Dep’t of Corr., 132 S.W.3d
369, 379 (Tenn. Ct. App. 2003); Turner v. Tenn. Bd. of Paroles, 993
S.W.2d 78, 80 (Tenn. Ct. App. 1999); Thandiwe v. Traughber, 909
S.W.2d 802, 804 (Tenn. Ct. App. 1994). Accordingly, the trial court
did not err in dismissing Wilson’s petition for this reason as well.
Wilson, 2006 Tenn. App. 91, at *14–16.
As we did in Wilson, we give Jackson the benefit of the latest possible date on which the
statute of limitations began to run (i.e. the date the warden denied his appeal, or February 11, 2004).
Our review of the record in this case reveals a lack of sufficient evidence presented by Jackson to
demonstrate his compliance with Tennessee Rule of Civil Procedure 5.06. While Jackson argues
that he mailed his petition earlier than May 26, 2004, he failed to set forth in his motion for a new
trial or in his brief filed on appeal sufficient proof to show his compliance with Rule 5.06. Without
such proof, it is clear that Jackson filed his petition well beyond the sixty (60) day limit provided for
in section 27-9-102 of the Tennessee Code. Accordingly, we affirm the trial court’s dismissal of his
petition for this reason as well.
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III.
CONCLUSION
While we afford pro se litigants a significant amount of deference, Young v. Barrow, 130
S.W.3d 59, 62–63 (Tenn. Ct. App. 2003), they are not excused from adhering to the same procedural
rules and substantive law applicable to all parties, Irvin v. City of Clarksville, 767 S.W.2d 649, 652
(Tenn. Ct. App. 1988). Accordingly, we hold that the trial court did not commit error when it
dismissed the Appellant’s petition for a common law writ of certiorari. Costs of this appeal are to
be taxed to the Appellant, James Jackson, for which execution, if necessary, may issue.
___________________________________
ALAN E. HIGHERS, JUDGE
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