David A. Avery v. Cheryl A. Blackburn

08/31/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 1, 2022

DAVID A. AVERY v. CHERYL A. BLACKBURN ET AL.

Appeal from the Circuit Court for Davidson County
No. 21C751 Hamilton V. Gayden, Jr., Judge
___________________________________

No. M2021-01482-COA-R3-CV
___________________________________

The trial court dismissed the plaintiff’s claims pursuant to Tennessee Rule of Civil
Procedure 12, determining that he had failed to state a claim upon which relief could be
granted. Following the trial court’s denial of the plaintiff’s motion for post-judgment
relief, the plaintiff appealed to this Court. Discerning no reversible error, we affirm.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.

David A. Avery, Hartsville, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter, and Mary Elizabeth McCullohs,
Senior Assistant Attorney General, for the appellee, Cheryl A. Blackburn.

Herbert H. Slatery, III, Attorney General and Reporter, and Lauren D. Rota, Assistant
Attorney General, for the appellee, Victor S. Johnson, III.

Wallace W. Dietz, Director of Law, and Andrew D. McClenahan and Angela D.
Williams, Assistant Metropolitan Attorneys, Department of Law of the Metropolitan
Government of Nashville and Davidson County, Nashville, Tennessee, for the appellee,
Daniel D. Newbern.
 OPINION

I. Factual and Procedural Background

The plaintiff, David A. Avery, filed a “Motion for Relief Affidavit in the Nature of
a Writ of Quo Warranto” (“Motion for Relief”) on May 3, 2021, in the Davidson County
Circuit Court (“trial court”), naming Judge Cheryl A. Blackburn; former District
Attorney General Victor S. Johnson, III; and police detective Daniel D. Newbern as
defendants. Mr. Avery is currently serving a forty-nine year sentence by reason of his
convictions for aggravated robbery, especially aggravated robbery, reckless
endangerment, and attempted second degree murder. State v. Avery, No. M2008-01809-
CCA-R3-CD, 2009 WL 4724430, at *1 (Tenn. Crim. App. Dec. 10, 2009). Judge
Blackburn presided over Mr. Avery’s criminal trial, and Mr. Johnson was the District
Attorney General at that time. Id. Mr. Newbern was a detective who worked on the
investigation. Id. Although Mr. Avery stated in his motion that he was seeking relief in
the nature of “a writ of quo warranto,” the relief sought included (1) the setting aside of
his criminal convictions, (2) his immediate release from incarceration, and (3) an award
of compensatory damages in the amount of $333,333,333.33.

On July 9, 2021, Judge Blackburn filed a motion to dismiss, pursuant to Tennessee
Rule of Civil Procedure 12.02, asserting that she was entitled to sovereign immunity. On
July 13, 2021, without reference to Judge Blackburn’s motion, the trial court entered an
order of dismissal, determining that Mr. Avery’s motion should be construed as a petition
for a writ of mandamus. The trial court dismissed Mr. Avery’s claims, finding that there
was no recognized right to be enforced via writ of mandamus. The court noted that if Mr.
Avery were seeking “redress for the underlying convictions, the proper remedy would
[be] by way of habeas corpus, contesting the conviction.” Mr. Avery subsequently filed a
motion seeking to strike Judge Blackburn’s motion to dismiss.

On July 20, 2021, Mr. Avery filed a motion seeking default judgments against the
defendants. Mr. Avery argued that the defendants had failed to appear and defend the
claims against them. On August 13, 2021, Mr. Avery filed a motion to amend, asserting
that the trial court’s July 13, 2021 order of dismissal should be “amended” such that
default judgment against the defendants would be entered in Mr. Avery’s favor. Mr.
Avery further argued that the court erred by treating his Motion for Relief as a petition
for writ of mandamus. Mr. Avery concomitantly filed a motion seeking issuance of
“bench warrants” for the immediate apprehension of the defendants.

The defendants each respectively filed responses opposing Mr. Avery’s motions to
amend, for default judgment, and for issuance of bench warrants for their arrest. The trial
court scheduled a hearing regarding the pending motions, denying Mr. Avery’s request
for transport due to COVID-19 protocols then in effect. The court stated that Mr. Avery
would be allowed to appear virtually to participate in the hearing. Mr. Avery
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subsequently filed pleadings objecting to the trial court’s rescheduling of the motion
hearing and seeking an order allowing him to be present in person for the rescheduled
hearing.

On October 28, 2021, the trial court entered an order denying Mr. Avery’s request
to be transported to the hearing and rescheduling the motion hearing to November 4,
2021, to be conducted virtually. Following that virtual hearing, wherein Mr. Avery and
counsel for the defendants were allowed to present arguments, the trial court entered an
order on November 10, 2021, respecting the pending motions. The trial court denied Mr.
Avery’s motion to strike Judge Blackburn’s motion to dismiss, determining that
inasmuch as Judge Blackburn was not served with process until June 14, 2021, her July 9,
2021 motion was timely filed.

Relative to Mr. Avery’s motion for default judgment, the trial court found that
Judge Blackburn filed her motion to dismiss within thirty days of service such that
default judgment against her would be improper. The court likewise found that default
judgment as to the remaining defendants was improper because the court had entered an
order denying Mr. Avery’s petition on July 13, 2021, and the remaining defendants filed
responses shortly thereafter.

Concerning Mr. Avery’s claim that the trial court erroneously characterized his
petition as one seeking a writ of mandamus, the court noted that Mr. Avery was
attempting to force elected officials to act within their official capacity, citing Hayes v.
Civil Serv. Comm’n of Metro. Gov’t of Nashville & Davidson Cnty., 907 S.W.2d 826, 828
(Tenn. Ct. App. 1995) (“Mandamus . . . is a special remedy in which the issues are
severely limited. It is used to coerce the performance of official duties[.]”). As such, the
court determined that it had properly construed Mr. Avery’s petition as one seeking a writ
of mandamus, and the court denied Mr. Avery’s motion to amend.

Respecting Mr. Avery’s request that bench warrants be issued compelling the
defendants’ arrests, the trial court noted that Mr. Avery had asserted that the defendants
had failed to appear and answer in this matter. However, the court found that because the
defendants had each respectively appeared by filing a motion or response, Mr. Avery’s
claim was moot. The court therefore denied his motion to issue bench warrants.

Finally, regarding Mr. Avery’s motion seeking entry of default judgment, the trial
court determined that Mr. Avery had failed to establish facts supporting a judgment by
default. As the court noted, “the timeline of the case would not support a Default
Judgment.” The court further determined that the tort claim asserted against Mr.
Newbern was barred by the one-year statute of limitations because Mr. Newbern’s
actions took place in 2008. The court accordingly denied Mr. Avery’s motions. Mr.
Avery timely appealed. Although Mr. Avery attempted to file a statement of the

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evidence pursuant to Tennessee Rule of Appellate Procedure 24, the court determined
that such statement did not meet Rule 24’s requirements.

II. Issues Presented

Mr. Avery presents the following issues for this Court’s review, which we have
restated slightly:

1. Whether the trial court properly applied the Tennessee Rules of Civil
Procedure to fully adjudicate and dispose of Mr. Avery’s claims
against the defendants.

2. Whether the trial court erred by failing to enter default judgment
against the defendants because the defendants failed to timely submit
answers to Mr. Avery’s averments and thus have purportedly waived
all defenses.

3. Whether Mr. Avery is entitled to relief due to the imposition of
irreparable injuries upon him by the defendants “via commercial
fraud under color of law.”

4. Whether Mr. Avery’s action is barred by the statute of limitations.

5. Whether Mr. Avery “is liable for any payment or performance
obligations associated with the fraudulent commercial instruments
executed against DAVID ANTHONY AVERY (Trust)” by the
defendants.

6. Whether the defendants are “contractually bound by the terms and
payment obligations of [Mr. Avery’s] Public Notice Contract
disseminated to the public-at-large regarding the unauthorized
usages of DAVID ANTHONY AVERY (Trust).”

III. Standard of Review

As this Court has previously explained concerning sua sponte dismissals:

A trial judge has the authority to dismiss a claim sua sponte “when he is of
the opinion that the complaint fails to state a claim upon which relief may
be granted.” Huckeby v. Spangler, 521 S.W.2d 568, 571 (Tenn. 1975). So
we review the court’s dismissal of the [claims] using the familiar standard
of review for a Rule 12.02(6) motion to dismiss. See Webb [v. Nashville
Area Habitat for Humanity], 346 S.W.3d [422,] 426-27 [(Tenn. 2011)].
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Kauffman v. Forsythe, No. E2019-02196-COA-R3-CV, 2021 WL 2102910, at *3 (Tenn.
Ct. App. May 25, 2021). Regarding the review of a dismissal pursuant to Rule 12.02(6),
our Supreme Court has elucidated:

A Rule 12.02(6) motion challenges only the legal sufficiency of the
complaint, not the strength of the plaintiff’s proof or evidence. The
resolution of a 12.02(6) motion to dismiss is determined by an examination
of the pleadings alone. . . .

In considering a motion to dismiss, courts “‘must construe the
complaint liberally, presuming all factual allegations to be true and giving
the plaintiff the benefit of all reasonable inferences.’” Tigg v. Pirelli Tire
Corp., 232 S.W.3d 28, 31-32 (Tenn. 2007) (quoting Trau-Med [of Am., Inc.
v. Allstate Ins. Co.], 71 S.W.3d [691,] 696 [(Tenn. 2002)]); see Leach v.
Taylor, 124 S.W.3d 87, 92-93 (Tenn. 2004); Stein v. Davidson Hotel Co.,
945 S.W.2d 714, 716 (Tenn. 1997); Bellar v. Baptist Hosp., Inc., 559
S.W.2d 788, 790 (Tenn. 1978); see also City of Brentwood v. Metro. Bd. of
Zoning Appeals, 149 S.W.3d 49, 54 (Tenn. Ct. App. 2004) (holding that
courts “must construe the complaint liberally in favor of the plaintiff by . . .
giving the plaintiff the benefit of all the inferences that can be reasonably
drawn from the pleaded facts”). A trial court should grant a motion to
dismiss “only when it appears that the plaintiff can prove no set of facts in
support of the claim that would entitle the plaintiff to relief.” Crews v.
Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002); see Lanier v.
Rains, 229 S.W.3d 656, 660 (Tenn. 2007); Doe v. Sundquist, 2 S.W.3d 919,
922 (Tenn. 1999); Pemberton v. Am. Distilled Spirits Co., 664 S.W.2d 690,
691 (Tenn. 1984); Fuerst v. Methodist Hosp. S., 566 S.W.2d 847, 848
(Tenn. 1978); Ladd v. Roane Hosiery, Inc., 556 S.W.2d 758, 759-60 (Tenn.
1977). We review the trial court’s legal conclusions regarding the
adequacy of the complaint de novo.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)
(other internal citations omitted).

We respect Mr. Avery’s decision to proceed without benefit of counsel. We note
that in reviewing pleadings, we “must give effect to the substance, rather than the form or
terminology of a pleading.” Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012)
(citing Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 104 (Tenn.
2010)). We note also that pleadings “prepared by pro se litigants untrained in the law
should be measured by less stringent standards than those applied to pleadings prepared
by lawyers.” Stewart, 368 S.W.3d at 462 (citing Carter v. Bell, 279 S.W.3d 560, 568
(Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003); Young
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v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Parties proceeding without benefit
of counsel are “entitled to fair and equal treatment by the courts,” but we “must not
excuse pro se litigants from complying with the same substantive and procedural rules
that represented parties are expected to observe.” Hessmer, 138 S.W.3d at 903.

IV. Post-Judgment Relief

The overarching issue to be addressed in this matter is whether the trial court
should have granted to Mr. Avery post-judgment relief from its prior order dismissing
Mr. Avery’s claims. The trial court found that because Mr. Avery’s original Motion for
Relief sought to “coerce elected officials to act within their official capacity,” it should be
treated as a petition for writ of mandamus. Mr. Avery posits that the trial court should
have granted him the relief he requested.

In his Motion for Relief, Mr. Avery stated that he was seeking relief “in the nature
of quo warranto.” “A quo warranto action will lie in a proceeding complaining of the
wrongful acts of public officials[.]” State ex rel. Vaughn v. King, 653 S.W.2d 727, 729
(Tenn. Ct. App. 1982). However, as this Court has further explained:

Quo warranto is a common law remedy, which the General
Assembly codified at Tenn. Code Ann. § 29-35-101, et seq. The procedure
has been described as “a writ of inquiry as to the warrant for doing the acts
of which complaint is made.” State ex rel. Wallen v. Miller, 202 Tenn. 498,
304 S.W.2d 654, 658 (1957) (quoting 44 Am. Jur., p. 88, Sec. 2). Quo
warranto actions generally are initiated by a district attorney general. See
Tenn. Code Ann. § 29-35-109. The reasoning for this limitation has been
explained as follows:

In a sense—in a very important sense—every citizen and
every taxpayer is interested in the enforcement of law, in the
administration of law, and in having only qualified officers
execute the law. But that general interest is not a private but
a public interest. Being such, it is to be represented by the
Attorney General or the district attorney, who are expected by
themselves or those they authorize to institute quo warranto
proceedings against usurpers in the same way that they are
expected to institute proceedings against any other violator of
the law. That general public interest is not sufficient to
authorize a private citizen to institute such proceedings; for if
it was, then every citizen and every taxpayer would have the
same interest and the same right to institute such proceedings,
and a public officer might, from the beginning to the end of
his term, be harassed with proceedings to try his title.
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 State ex rel. Wallen v. Miller, 304 S.W.2d at 658 (quoting Newman v.
United States ex rel. Frizzell, 238 U.S. 537, 547-48, 35 S. Ct. 881, 59 L.
Ed. 1446 (1915)).

In limited circumstances, a private citizen may file a quo warranto
action. See Tenn. Code Ann. § 29-35-110. However, the lawsuit still must
be brought in the name of the district attorney general. State ex rel. Wallen
v. Miller, 304 S.W.2d at 658-59. The plaintiff also is required to serve a
copy of the complaint upon the district attorney general, who then must
decide whether to join in the petition. Bennett v. Stutts, 521 S.W.2d 575,
577 (Tenn. 1975).

Dossett v. City of Kingsport, 258 S.W.3d 139, 144 (Tenn. Ct. App. 2007).

In this matter, Mr. Avery failed to comply with the above-referenced statutory
requirements for filing a quo warranto action as a private citizen. See id. Therefore, as
the trial court properly concluded, Mr. Avery could not proceed with a claim sounding in
quo warranto.

Rather than analyzing Mr. Avery’s claim as a quo warranto action, however, the
trial court treated Mr. Avery’s Motion for Relief as a petition for a writ of mandamus. As
the United States Supreme Court explained long ago concerning the purpose of a writ of
mandamus:

Blackstone, vol. 3, p. 110, says that a writ of mandamus is “a command
issuing in the king’s name from the court of king’s bench, and directed to
any person, corporation or inferior court, requiring them to do some
particular thing therein specified, which appertains to their office and duty,
and which the court has previously determined, or at least supposes, to be
consonant to right and justice. It is a writ of a most extensively remedial
nature, and issues in all cases where the party has a right to have any thing
done, and has no other specific means of compelling its performance.”

Marbury v. Madison, 5 U.S. 137, 147 (1803). Likewise, our Supreme Court has
elucidated:

Where the law plainly prescribes a specific duty or a specific act to
be performed, which is due in point of it, but has been refused, if simply
effecting a private right, or only omitted if of public concern, the court may
interfere at the instance of the proper parties, and by mandamus set those
public officials charged with the duty in motion, leaving to them, however,

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 the free exercise of their own judgment and discretion in the manner of
performance.

State v. Meador, 284 S.W. 890, 891 (Tenn. 1926); see State v. Irick, 906 S.W.2d 440, 442
(Tenn. 1995) (“Mandamus is a summary remedy, extraordinary in its nature, and is to be
applied only when a right has been clearly established, so that there remains only a
positive ministerial duty to be performed[.]”) (quoting Peerless Constr. Co. v. Bass, 14
S.W.2d 732 (Tenn. 1929)). See also Peerless Constr. Co. v. Bass, 14 S.W.2d 732, 734
(Tenn. 1929) (explaining that “the purpose of a writ of mandamus is not to establish a
legal right,” . . . “but to enforce one which has already been established.”) (quoting 38
C.J. Mandamus 582).

This Court has similarly clarified as follows:

A writ of mandamus is an “extraordinary remedy.” Meighan v. U.S.
Sprint Communications Co., 942 S.W.2d 476, 479 (Tenn. 1997). While it
is normally used to compel public officials to perform their ministerial
duties, State ex rel Ledbetter v. Duncan, 702 S.W.2d 163, 165 (Tenn.
1985), it may be used to prevent public officials from “palpably abusing
their discretion” by performing discretionary acts in an arbitrary or
oppressive manner. Meighan v. U.S. Sprint Communications Co., 942
S.W.2d at 479. Mandamus is the proper remedy to enforce specific legal
rights when the person seeking the writ has no other specific or adequate
remedy. State ex rel. Weaver v. Ayers, 756 S.W.2d 217, 221 (Tenn. 1988);
State ex rel. Witcher v. Bilbrey, 878 S.W.2d 567, 570-71 (Tenn. Ct. App.
1994).

Courts will not issue a writ of mandamus against a public official
unless the proof shows that the official is clearly refusing to perform some
nondiscretionary, ministerial act. State ex rel. Cole v. Francisco, 643
S.W.2d 105, 106 (Tenn. 1982). Conversely, where the party seeking
mandamus has a clear, vested legal right, he or she is normally entitled to
the writ. State ex rel. Nashville Pure Milk Co. v. Town of Shelbyville, 192
Tenn. 194, 207, 240 S.W.2d 239, 244 (1951). Such a right must be clearly
established; mandamus will not lie where the right is doubtful. State ex rel.
Weaver v. Ayers, 756 S.W.2d at 221; Tusant v. City of Memphis, 56 S.W.3d
10, 18 (Tenn. Ct. App. 2001).

An act is considered “ministerial” when the law prescribes and
defines the duties to be performed “with such precision and certainty as to
leave nothing to the exercise of [the official’s] judgment.” Lamb v. State,
207 Tenn. 159, 163, 338 S.W.2d 584, 586 (1960). Conversely, a
“discretionary” act is one performed by an official who has the authority to
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 decide not only how the act will be performed but also whether or not the
act will be performed at all. Bradley v. State ex rel. Haggard, 222 Tenn.
535, 540, 438 S.W.2d 738, 740 (1969); Lamb v. State, 207 Tenn. at 163,
338 S.W.2d at 586; Tusant v. City of Memphis, 56 S.W.3d at 18.

Johnson v. Tenn. Dep’t of Corr., No. M2001-02424-COA-R3-CV, 2003 WL 22794498,
at *2 (Tenn. Ct. App. Nov. 25, 2003).

In his Motion for Relief, Mr. Avery stated in pertinent part:

This action arises from the unlawful deprivation of my natural
organic birthrights to contract and to remain at liberty under the color of
law by the respondents (conspiracy against rights). . . .

Cheryl A. Blackburn, Davidson County Criminal Court, Division III
entered fraudulent commercial judgments against DAVID ANTHONY
AVERY (estate); . . . in an administrative nonjudicial commercial dispute
between the STATE OF TENNESSEE v. DAVID ANTHONY AVERY
(legal entities) by operation of law under the guise of a de facto “criminal
prosecution” via Constructive Trust Account #2006-C-2451 while engaged
in the unauthorized misappropriation of said estate with no delegation of
authority to do so, in the clear absence of all jurisdiction, and with no
verified claims that grants the usurpation of the beneficial interest contained
in said estate. . . .

Victor S. Johnson III, District Attorney General also engaged in the
unauthorized appropriation of DAVID ANTHONY AVERY (estate) in
commercial intercourse by creating and endorsing the charging indictment
(commercial instrument) against said estate; . . . which serves to evince the
corporate existence of the STATE OF TENNESSEE and identifies its
primary business operation as AGRICULTURE COMMERCE. . . .

Daniel Newburn, MNPD Detective also trespassed upon DAVID
ANTHONY AVERY (estate) in commercial intercourse by creating and
endorsing the True Bill (commercial instrument) against said estate also
endorsed by David C. Torrence et al,; . . .

Exclusively resulting from the execution of the aforementioned
commercial instruments ex rel. DAVID ANTHONY AVERY©(legal
entity), I, David A.; of the family Avery am now, and have been subjected
to and victimized by Human Trafficking, Involuntary Servitude, False
Imprisonment and the malicious deprivation of my natural organic

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 birthrights to contract and to remain at liberty for the past 14 years without
probable cause, and with no verified valid claims against me. . . .

Because the respondent’s unlawful actions against me resulted in the
unwarranted false imprisonment and deprivation of my natural organic
birthrights, I demand to be afforded the “RIGHT TO BE HEARD,” the
alleged judgments must be set aside, and because proof of their actions is
evinced by their own signatures on the specific commercial instruments that
caused my injuries, all of the commercial instruments against said estate
must undergo a FULL RESCISSION pursuant to UCC 3-202, and all of the
respondents shall be required to personally represent themselves by
submitting a point-for-point counter affidavit in writing to rebut the claims
against them within thirty (30) days from the date on the face of this
commercial instrument (contract). I am rightfully entitled to any and all
relief available. However, aside from the relief mentioned above, I also
seek the immediate release from my unlawful imprisonment, settlement of
the estate and any trust accounts opened by any corporate entities or natural
persons ex rel. DAVID ANTHONY AVERY (estate), and to be awarded
the just and equitable compensation for the emotional distress, mental
anguish and the physical and pecuniary injuries inflicted upon me under the
color of law in the certain exact sum of $333,333,333,.33; i.e. Three
Hundred Thirty Three Million Three Hundred Thirty Three Thousand
Three Hundred Thirty Three Dollars and Thirty Three Cents USD or its
equivalent in goods, services and property.

Although the basis for the relief sought by Mr. Avery is not clear or easily
discernible, it appears that Mr. Avery has alleged that the defendants acted without
proper authority when investigating, prosecuting, and trying him in relation to his
criminal charges, resulting in his alleged injury. Further review of Mr. Avery’s Motion
for Relief, however, reveals that the relief sought included (1) the setting aside of his
criminal convictions, (2) his immediate release from incarceration, and (3) an award of
monetary damages.

Although monetary damages are not ordinarily recoverable in mandamus
proceedings, see Paduch v. City of Johnson City, 896 S.W.2d 767, 770 (Tenn. 1995), we
determine that the trial court did not err in treating Mr. Avery’s motion as a petition for
writ of mandamus based on the balance of the relief sought. See Stewart, 368 S.W.3d at
463 (“Courts must give effect to the substance, rather than the form or terminology of a
pleading.”). Mr. Avery clearly sought a ruling from the trial court commanding the
defendants to release him from incarceration and directing his criminal convictions be set
aside. However, even if the defendants had the authority to satisfy Mr. Avery’s demands,
and presuming all factual allegations in his motion to be true and giving him the benefit

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of all reasonable inferences, Mr. Avery has not established a “clear, vested legal right” to
such relief. See Johnson, 2003 WL 22794498, at *2.

This Court has clarified:

Tennessee courts will issue writs of mandamus only when the following
three elements coexist: (1) the plaintiff’s clear right to the relief sought,
Peerless Constr. Co. v. Bass, 158 Tenn. 518, 520, 14 S.W.2d 732, 733
(1929); (2) the defendant’s clear duty to perform the act the plaintiff seeks
to compel, State ex rel. Weaver v. Ayers, 756 S.W.2d 217, 221 (Tenn.
1988); and (3) the absence of any other specific or adequate remedy, State
ex rel. Motlow v. Clark, 173 Tenn. 81, 87, 114 S.W.2d 800, 802-03 (1938).

State ex rel. Hayes v. Civil Serv. Comm’n of Metro. Gov’t of Nashville & Davidson Cnty.,
No. 01-A-01-9002-CH-00061, 1990 WL 165073, at *2 (Tenn. Ct. App. Oct. 31, 1990)).
Moreover, Mr. Avery, the party seeking mandamus, bears the burden of proving that his
right to issuance of the writ is clear. Delk v. State, No. W2019-00224-COA-R3-CV,
2019 WL 3229773, at *4 (Tenn. Ct. App. July 18, 2019).

Affording Mr. Avery the benefit of all inferences that can be reasonably drawn
from the pleaded facts, we conclude that Mr. Avery cannot establish any of the above-
listed elements because he has alleged no clear right to the relief he desires and has failed
to show that the defendants have a clear duty or even the authority to perform the acts he
seeks to compel. We note that Mr. Avery was convicted by a jury for his crimes. See
State v. Avery, 2009 WL 4724430, at *1. As such, the relief he desires would necessarily
come from a direct appeal of his convictions or a petition for post-conviction relief. See
generally Tenn. R. Crim. P. 37; Tenn. R. App. P. 3(b); Tenn. Code Ann. § 40-30-101, et
seq. Although Mr. Avery had these other remedies available to him, he has now
exhausted those remedies without obtaining relief. See State v. Avery, 2009 WL
4724430, at *21; Avery v. State, No. M2011-02625-CCA-R3-PC, 2012 WL 6570737, at
*5 (Tenn. Crim. App. Dec. 17, 2012). Accordingly, the trial court properly determined
that Mr. Avery failed to state a claim for writ of mandamus.

Furthermore, to the extent that Mr. Avery’s allegations could be construed as
sounding in tort due to his claims of injury resulting from his conviction and
incarceration and his pursuit of monetary damages, we conclude that he has similarly
failed to state a claim in tort for which relief can be granted. We note that in a previous
case, which involved tort claims of negligence/malpractice due to the defendant
attorneys’ representation of the plaintiff during his criminal prosecution and challenged
his resulting guilty plea, our Supreme Court elucidated that “the validity of criminal
convictions are not designed to be tested in the civil tort arena.” Gibson v. Trant, 58
S.W.3d 103, 112-13 (Tenn. 2001). This principle was previously adopted by the United
States Supreme Court in a case brought by a prisoner pursuant to 42 U.S.C. § 1983
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concerning the validity of his conviction, when such conviction had not been reversed or
invalidated. See Heck v. Humphrey, 512 U.S. 477, 486 (1994) (invoking the “hoary
principle that civil tort actions are not appropriate vehicles for challenging the validity of
outstanding criminal judgments”).

Mr. Avery has generally alleged that negligent and/or intentional acts by the
defendants resulted in injury to him. In doing so, Mr. Avery has presented general
allegations of “fraud,” “misrepresentation,” and “malfeasance” by the defendants without
any specific factual assertions to support such claims. “Great specificity in the pleadings
is ordinarily not required to survive a motion to dismiss; it is enough that the complaint
set forth ‘a short and plain statement of the claim showing that the pleader is entitled to
relief.’” Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002)
(quoting White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn. 2000) (citing
Tenn. R. Civ. P. 8.01). However, “the circumstances constituting fraud or mistake shall
be stated with particularity.” See Tenn. R. Civ. P. 9.02.

Here, Mr. Avery has failed to state more than conclusory allegations concerning
the defendants. He has alleged no facts whatsoever in support of his claims. Again,
affording Mr. Avery the benefit of all inferences that can be reasonably drawn from the
pleaded facts, we determine that Mr. Avery has failed to state a tort claim upon which
relief can be granted.

Moreover, assuming, arguendo, that Mr. Avery were able to state tort claims
against these defendants concerning the validity of his convictions and incarceration, any
such claim would have accrued at or before the time of his convictions, which occurred
more than fourteen years ago. Ergo, as the trial court properly found, Mr. Avery’s tort
claims would be barred by the applicable statutes of limitations. See generally Tenn.
Code Ann. § 28-3-104 (2017) (one-year statute of limitations applicable to most tort
claims, including negligence and malicious prosecution); Tenn. Code Ann. § 28-3-105
(2017) (three-year statute of limitations applicable to claims of fraud and
misrepresentation).

We reiterate that a trial court should dismiss a plaintiff’s claims “only when it
appears that the plaintiff can prove no set of facts in support of the claim that would
entitle the plaintiff to relief.” Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857
(Tenn. 2002). Inasmuch as Mr. Avery can prove no set of facts entitling him to the relief
he seeks, we conclude that the trial court properly dismissed his claims. Accordingly, the
trial court did not abuse its discretion in denying Mr. Avery post-judgment relief from the
dismissal order. See Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012) (“A
trial court’s ruling on a post-judgment motion to alter or amend a judgment filed pursuant

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to either Rule 59.04 or Rule 60.02 of the Tennessee Rules of Civil Procedure is reviewed
under the abuse of discretion standard.”).1

V. Remaining Issues

Mr. Avery contends that the trial court erred by failing to enter default judgment
against the defendants because the defendants failed to timely submit answers to Mr.
Avery’s averments and “have thus waived all defenses.” Based upon our review of the
record, however, it is clear that Mr. Avery’s motion for default judgment was filed after
the trial court had dismissed his claims. Having determined that the trial court properly
denied Mr. Avery post-judgment relief from the dismissal order, we further determine
that Mr. Avery’s motion for default judgment is now moot.

We also conclude that Mr. Avery’s remaining issues concerning commercial and
contract law are unavailing, inasmuch as principles of contract and commercial law have
no applicability to the validity of Mr. Avery’s criminal convictions or incarceration.
Furthermore, despite his argument to the contrary, Mr. Avery is unable to bind others to a
“Public Notice Contract,” which is unilateral in nature, in order to claim damages
thereunder. See Davidson v. Holtzman, 47 S.W.3d 445, 453 (Tenn. Ct. App. 2000)
(explaining that “contemplated mutual assent and meeting of the minds [required for a
valid contract to be formed] cannot be accomplished by the unilateral action of one party”
(quoting Jamestowne on Signal, Inc. v. First Fed. Savings & Loan Assoc., 807 S.W.2d
559, 564 (Tenn. Ct. App. 1990))).

VI. Conclusion

For the foregoing reasons, we affirm the trial court’s dismissal of Mr. Avery’s
Motion for Relief. Costs on appeal are assessed to the appellant, David A. Avery. This
case is remanded to the trial court for collections of costs assessed below.

s/Thomas R. Frierson, II
_________________________________
THOMAS R. FRIERSON, II, JUDGE

1
Mr. Avery insists that the trial court failed to fully adjudicate all of his claims in accordance with
Tennessee Rule of Civil Procedure 54.02. We disagree. The trial court entered an order dismissing Mr.
Avery’s claims pursuant to Tennessee Rule of Civil Procedure 12, and an order of dismissal for failure to
state a claim upon which relief can be granted operates as an adjudication on the merits. See Creech v.
Addington, 281 S.W.3d 363, 378 (Tenn. 2009).
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