10/10/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 3, 2017
GARY WAYNE GARRETT v. TENNESSEE BOARD OF PAROLE
Appeal from the Chancery Court for Davidson County
No. 16-355-I Claudia Bonnyman, Chancellor
No. M2016-01738-COA-R3-CV
This appeal involves an incarcerated inmate’s filing of a petition for writ of certiorari,
claiming that the Tennessee Board of Parole acted arbitrarily and without material
evidence in denying his request for parole. The respondent filed a motion to dismiss,
claiming that the time for filing such a petition had passed. The trial court dismissed the
petition as untimely. The petitioner appeals. We reverse and remand for further hearing.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and BRANDON O. GIBSON, J., joined.
Gary Wayne Garrett, Clifton, Tennessee, Pro Se.
Herbert H. Slatery, III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, and Charlotte Davis, Assistant Attorney General, Nashville, Tennessee, for the
appellee, the Tennessee Board of Parole.
OPINION
I. BACKGROUND
Gary Wayne Garrett (“Petitioner”) is an inmate housed at the South Central
Correctional Facility in Clifton, Tennessee. He was convicted of 16 counts of “various
charges,” including first degree burglary, petit larceny, rape, aggravated rape, and
attempted first degree burglary while employing a firearm. Petitioner was sentenced in
1986 to an aggregate sentence of 119 years with parole eligibility.
On December 2, 2015, Petitioner was granted a parole hearing, his second, by the
Tennessee Board of Parole (“the Board”). The Board denied parole on the ground that
his “release from custody at this time would depreciate the seriousness of the crime of
which [he] stands convicted or promote disrespect of the law.” Petitioner appealed the
Board’s decision. His appeal was denied on January 28, 2016. Accordingly, the time for
filing a petition for writ of certiorari expired on March 28, 2016, pursuant to Tennessee
Code Annotated section 27-9-102.1
On March 28, 2016, Petitioner filed a petition for writ of certiorari by placing the
document in the prison mailroom. See Tenn. R. Civ. P. 5.06. The petition, which named
the Board as the respondent, was not notarized. Petitioner attached several supporting
documents to the petition and an affidavit explaining that he was denied access to a
notary because the facility was placed on lockdown the week prior to the expiration of
the statute of limitations. The Clerk and Master returned the documents to Petitioner
with instructions to sign and notarize. Petitioner complied and had the petition notarized
on April 5, 2016. The record is unclear as to whether the petition was returned to the
mailroom on April 5; however, the record reflects that the petition was received by the
Chancery Court on April 11 and marked filed on April 12.
The Board filed a motion to dismiss, claiming that the court lacked subject matter
jurisdiction because the petition was not filed within 60 days of the denial of his appeal.
The Board explained that the petition did not contain the proper notarization until April 5,
68 days after entry of the final administrative order appealed from. Petitioner responded
by asserting that his petition was timely as evidenced by his placement of the initial
petition in the prison mailroom on March 28. He asserted that his failure to obtain the
proper notarization should be characterized as excusable neglect under the circumstances.
He further alleged that he filed an inmate grievance form with the Tennessee Department
of Correction (“TDOC”), documenting his attempt to obtain a notary and the denial of the
same within the applicable statute of limitations. He noted that he had yet to receive a
response as of June 10, 2016.
The trial court dismissed the petition on July 22, 2016, finding that the initial filing
was timely but unverified, thereby requiring dismissal for lack of jurisdiction. The court
noted that even if it were to consider the initial filing as a request for extension of time,
the request was not submitted to the court in time to grant an extension. The court further
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“Such party shall, within sixty (60) days from the entry of the order or judgment, file a petition of
certiorari in the chancery court of any county in which any one (1) or more of the petitioners, or any one
(1) or more of the material defendants reside, or have their principal office, stating briefly the issues
involved in the cause, the substance of the order or judgment complained of, of the respects in which the
petitioner claims the order or judgment is erroneous, and praying for an accordant review.”
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found that the second filing, while verified, was not submitted within the 60-day time
period required, thereby depriving it of jurisdiction.
On August 8, 2016, Petitioner filed a motion to alter or amend the court’s
judgment and requested leave to amend his complaint to add the Tennessee Department
of Correction (“the TDOC”) as a party. He alleged new claims against the TDOC,
arguing that it caused his delay in filing a notarized petition. Three days later, on August
11, he filed a timely notice of appeal before the court issued a ruling on the motion. On
September 14, he moved to amend the pleadings to conform to the evidence and attached
a copy of his inmate grievance form, documenting his attempt to obtain a notary prior to
the expiration of the statute of limitations and his denial of the same. These documents
reflect that the TDOC resolved the grievance by posting an updated list of available
notaries in the facility and updating its policy to ensure that a notary is made available in
a reasonable amount of time following a request for notary services.
We remanded with instruction to rule upon the pending motions. Upon remand,
the court denied the motion to alter or amend, finding that such motions should not be
used to raise or present new allegations against a new party. The court further denied the
motion to amend the pleadings, finding that the newly discovered evidence did not
provide the court with subject matter jurisdiction to excuse the untimeliness and review
his denial of parole. We accepted jurisdiction of this appeal following the court’s denial
of the motions.
II. ISSUES
The sole issue on appeal is whether the trial court properly dismissed the petition
for writ of certiorari as untimely.
III. STANDARD OF REVIEW
This appeal involves issues of law. The trial court’s conclusions of law are subject
to a de novo review with no presumption of correctness. Blackburn v. Blackburn, 270
S.W.3d 42, 47 (Tenn. 2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91
(Tenn. 1993).
IV. DISCUSSION
Petitioner claims, inter alia, that the court improperly dismissed his petition when
the court clerk failed to docket the initial filing in time for the court to grant an extension.
He further claims that the initial filing was timely as evidenced by the fact that he placed
the petition in the prison mailroom on March 28, 2016, and that his failure to submit a
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verified petition within the statute of limitations should be characterized as excusable
neglect. Article 6, Section 10 of the Tennessee Constitution provides as follows:
The Judges or Justices of the Inferior Courts of Law and Equity shall have
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.
(Emphasis added.). Likewise, Tennessee Code Annotated section 27-8-104(a) imparts
the following:
(a) 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.
(Emphasis added.). A petition that is not properly verified under oath or affirmation must
be dismissed. Depew v. King’s, Inc., 276 S.W.2d 728, 729 (Tenn. 1955); Bowling v.
Tennessee Bd. of Paroles, No. M2001-00138-COA-R3-CV, 2002 WL 772695, at *3
(Tenn. Ct. App. Apr. 30, 2002). “Courts have consistently held that the failure of the
petitioner to verify the petition as required by the Tennessee Constitution and the
Tennessee Code is proper grounds for dismissal.” Carter v. Little, No. W2007-00189-
COA-R3-CV, 2007 WL 2872390, at *3 (Tenn. Ct. App. Aug. 23, 2007). Accordingly,
we conclude that the initial filing, while timely, was subject to immediate dismissal for
lack of jurisdiction.
The second filing, while supported by oath or affirmation, was filed beyond the
expiration of the 60-day statute of limitations. Tennessee Code Annotated section 27-9-
102 “requires that a petition for writ of certiorari be filed within [60] days from the entry
of the judgment appealed from. Failure to file the petition within this time limit results in
the challenged judgment becoming final, which deprives a reviewing court of jurisdiction
over the matter.” Blair v. Tennessee Bd. of Prob. & Parole, 246 S.W.3d 38, 40 (Tenn.
Ct. App. 2007) (citations omitted). Despite this jurisdictional requirement, Rule 6.02 of
the Tennessee Rules of Civil Procedure provides as follows:
When by statute or by these rules or by a notice given thereunder or by
order of court an act is required or allowed to be done at or within a
specified time, the court for cause shown may, at any time in its discretion,
(1) with or without motion or notice order the period enlarged if request
therefor is made before the expiration of the period originally prescribed or
as extended by a previous order, or (2) upon motion made after the
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expiration of the specified period permit the act to be done, where the
failure to act was the result of excusable neglect, but it may not extend the
time for taking any action under Rules 50.02, 59.01, 59.03 or 59.04, except
to the extent and under the conditions stated in those rules. This subsection
shall not apply to the time provided in Tennessee Rule of Appellate
Procedure 4(a) for filing a notice of appeal, nor to the time provided in
Tennessee Rule of Appellate Procedure 24(b) & (c) for filing a transcript or
statement of evidence.
(Emphasis added.). Citing Blair, the Board asserts that the trial court was without
jurisdiction to grant an enlargement of time because the initial filing was not received by
the court within the time for filing such an extension. 246 S.W.3d at 41. (providing that
an order granting an extension must be entered prior to the expiration of the statute of
limitations).
Here, the second filing included an affidavit in which Petitioner alleged that he
was unable to timely file a notarized petition as a result of “the failure of prison
authorities to provide [him] access to notarized services.” He asked the court to “stamp
his writ as been filed in a timely manner and/or allow [him] to [file] supplemental
affidavit or whatever this court deem proper in this case.” In consideration of Petitioner’s
status as a pro se litigant, we hold that the trial court erred in not treating his request as a
motion to extend the time for filing pursuant to Rule 6.02(2). See Young v. Barrow, 130
S.W.3d 59, 63 (Tenn. Ct. App. 2003) (“The courts give pro se litigants who are untrained
in the law a certain amount of leeway in drafting their pleadings and briefs.”).
Accordingly, we remand for further hearing on the issue of whether leave should be
granted to permit the late filing of the verified petition as a result of excusable neglect.
This decision is left to the discretion of the trial court.
V. CONCLUSION
With the above considerations in mind, we reverse the dismissal of the petition
and remand for further proceedings consistent with this opinion. Costs of the appeal are
taxed to the appellee, the Tennessee Board of Parole.
_________________________________
JOHN W. McCLARTY, JUDGE
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