Opinion
No. M2005-00471-COA-R3-CV.
Assigned on Briefs April 13, 2007.
Filed May 30, 2007.
Appeal from the Circuit Court for Hickman County No. 04-5107C Robert E. Lee Davies, Judge.
Judgement of the Circuit Court Affirmed.
Anthony Adams, Mountain City, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Bradley W. Flippin, Assistant Attorney General, for the appellee, Tennessee Department of Corrections.
Patricia J. Cottrell, J., delivered the opinion of the court, in which William C. Koch, JR., P.J., M.S., and Frank G. Clement, JR., J., joined.
OPINION
A prisoner filed a petition for certiorari in the Davidson County Chancery Court, seeking review of the actions of the prison disciplinary board. The court found that the action had been filed in an improper venue and transferred the matter to the Hickman County Circuit Court, pursuant to Hawkins v. Tenn. Department of Correction, 127 S.W.3d 749 (Tenn.Ct.App. 2002). The Hickman County Circuit Court dismissed the petition on several grounds, including the petitioner's failure to file an affidavit with the court listing every lawsuit or claim previously filed by the inmate, together with specific information about each of those filings, as is required by Tenn. Code Ann. § 41-21-805. We affirm the trial court.
I. PROCEEDINGS IN DAVIDSON COUNTY
On February 25, 2004, Anthony Adams, an inmate in the custody of the Tennessee Department of Correction, was brought before the Disciplinary Board of the Turney Center Industrial Prison, which is located in Hickman County. He was charged with violating state law. After a hearing, he was found guilty of the charge and was placed in maximum security administrative segregation. He was also stripped of 180 days worth of sentence reduction credits, and was fined $5.00.
The information in this paragraph comes entirely from M r. Adams' pleadings and briefs. The Department has omitted any information about his disciplinary offense or the proceedings concerning that offense from its own filings, and has focused solely on procedural matters in the trial court.
On June 4, 2004, Mr. Adams filed a pro se Petition for Writ of Certiorari in the Chancery Court of Davidson County, seeking review of the actions of the disciplinary board. On June 10, 2004 the Chancery Court filed an order noting that the petitioner had "filed civil action on a pauper's oath," and directing him to file an affidavit in accordance with Tenn. Code Ann. § 41-21-805 and to make at least a partial payment of the $37.50 filing fee or face dismissal of his petition.
The only application to proceed in forma pauperis found in the record was filed on March 10, 2005, together with an affidavit of indigency after Mr. Adams filed his notice of appeal to this court.
Tenn. Code Ann. § 41-21-807(b)(1) requires inmates filing civil actions in forma pauperis to pay the full amount of the filing fee.
Tenn. Code Ann. § 41-25-805 requires an inmate who files a claim accompanied by an affidavit of inability to pay costs to file a separate affidavit listing every lawsuit or claim previously filed by the inmate, together with specific information about each of those filings, as well as a current certified copy of the inmate's trust account. We could find no affidavit in the record demonstrating that Mr. Adams complied with Tenn. Code Ann. § 41-21-805.
The record does show, however, that he filed a written request with the Department of Correction in July of 2004 for a withdrawal of $37.50 from his trust account to be applied to his filing fee. On September 14, 2004, the Chancery Court filed an order transferring the case to the Circuit Court of Hickman County, pursuant to Tenn. Code Ann. § 41-21-803 which reads, "[e]xcept as otherwise provided by law an action that accrued while the plaintiff inmate was housed in a facility operated by the department shall be brought in the county in which the facility is located." See also Hawkins v. Tenn. Department of Correction, 127 S.W.3d 749 (Tenn.Ct.App. 2002).
II. PROCEEDINGS IN HICKMAN COUNTY
On December 1, 2004, the Department filed a motion to dismiss, citing several procedural deficiencies in Mr. Adams' petition. The Department noted that the petition was not properly verified in accordance with the requirements of the Tennessee Constitution (Art. VI, § 10) and with Tenn. Code Ann. § 27-8-104(a), which states that "[t]he judges of the inferior courts of law 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, on sufficient cause, supported by oath or affirmation."
The cited provisions have been held to mean that a petition for writ of certiorari must be accompanied by a sworn and notarized statement that the allegations contained in the petition are true and correct to the best of the petitioner's knowledge. Bowling v. Tennessee Board of Paroles, No. M2001-00138-COA-R3-CV, 2002 WL 772695 at *3 (Tenn.Ct.App., April 30, 2002) (no Tenn. R. App. P. 11 application filed); Depew v. Kings, Inc., 276 S.W.2d 728, 729 (Tenn. 1955).
The Department also pointed out that Mr. Adams' petition did not meet the requirements of Tenn. Code Ann. § 27-8-106, which states that a 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." This court has held that failure to comply with the requirements of Tenn. Code Ann. § 27-8-104 and-106 is a proper basis for dismissal. Bowling, supra; Hughes v. NECX Disciplinary Board Members, No. E2005-01972-COA-R3-CV, 2006 WL 656789 (Tenn.Ct.App. Mar. 16, 2006) (no Tenn. R. App. P. 11 application filed).
Further, Mr. Adams had apparently still not filed an affidavit listing any claims and lawsuits previously filed, for the Department also argued that his failure to comply with the requirements of Tenn. Code Ann. § 41-21-805, supra, constituted another ground for dismissal.
Mr. Adams responded to the Department's motion to dismiss with a motion to amend his petition. His proposed amendment consisted of a "sworn notification" stating that his petition was the first application for the writ, accompanied by an affidavit declaring among other things that the application for the writ was submitted in good faith, and that he did not have the necessary funds to pay court costs. Although the above-referenced documents were notarized, and thus met the requirements of Tenn. Code Ann. § 27-8-106, they did not include a sworn and notarized affidavit that the matters in the petition were true to the best of the petitioner's knowledge, and thus the requirement of verification under Tenn. Code Ann. § 27-8-104(a) remained unsatisfied.
On January 14, 2005 the trial court dismissed Mr. Adams' petition. The court stated that it found that the petition was not verified and that it failed to state that it was the first application for the writ. The court further found that Mr. Adams had "failed to file an affidavit regarding the history of his prior lawsuits, his inability to pay court costs, and a certified copy of his inmate trust account." In a later order, filed on February 17, 2005, the trial court dismissed Mr. Adams' motion for leave to amend his complaint.
It is unclear from the record why the trial court did not address Mr. Adams' motion to amend his petition prior to dismissing it.
Mr. Adams filed a motion to alter or amend the court's judgment. For some reason unclear from the record, his motion only addressed the question of court costs. The petitioner stated that he had paid the initial required filing fee of $37.50 in the Chancery Court of Davidson County before the case was transferred to Hickman County, and therefore that "the Courts recent order of dismissal for failure to pay court cost is an invalid order and should be vacated." On April 14, 2005, the court dismissed Mr. Adams' motion to alter or amend. Among other things, the court addressed the new argument as to the filing fees, and stated,
The court is of the opinion that the petitioner was required to pay the additional filing fee to Hickman County. The Court also finds that the petitioner has refused to pay any portion of the filing fee although he had an average monthly balance of $30.07 in his trust account. Therefore the Court finds that petitioner's motion to alter or amend is not well taken and should be denied.
This appeal followed.
III. TENN. CODE ANN. § 41-21-805
We must note at the outset that Mr. Adams' statement that his petition had been dismissed "for failure to pay court cost" is a mischaracterization and is not supported by the record. In fact, the question of whether Mr. Adams is required to pay a filing fee in Hickman County does not even appear in the record until he himself introduces it in his motion to alter or amend the judgment. Although the petitioner's appellate brief devotes considerable space to this question, the Department's brief does not even address it, and it appears to us that the record furnishes us with sufficient grounds to affirm the trial court's judgment without the need to address it ourselves.
Tenn. Code Ann. § 41-21-805(a) requires every inmate who wishes to file a complaint or petition and who has filed an affidavit of indigency in order to take advantage of the law's leniency in regard to the costs that normally accompany the filing of a civil action to file an affidavit for the benefit of the court containing the following information:
(1) A complete list of every lawsuit or claim previously filed by the inmate, without regard to whether the inmate was incarcerated at the time any claim or action was filed; and
(2) For each claim or action listed in subsection (a):
(A) The operative facts for which relief was sought;
(B) The case name, case number and court in which the suit or claim was filed;
(C) The legal theory on which the relief sought was based;
(D) The identification of each party named in the action; and
(E) The final result of the action, including dismissal as frivolous or malicious under this part or otherwise.
(b) If the affidavit filed under this section states that a previous suit was dismissed as frivolous or malicious, the affidavit must state the date of the final order affirming the dismissal.
(c) The affidavit must be accompanied by a current certified copy of the inmate's trust account statement.
The purpose of Tenn. Code Ann. § 41-21-805 is to discourage the filing of meritless lawsuits at public expense, while not raising the barrier against valid claims to an unreasonable height. Williams v. Bell, 37 S.W.3d 477, 480 (Tenn.Ct.App. 2000); Davis v. Holland, 31 S.W.3d 574, 577 (Tenn.Ct.App. 2000).
In the present case, Mr. Adams was first directed to comply with the requirements of Tenn. Code Ann. § 41-21-805 by the Chancery Court of Davidson County. After his petition was transferred to Hickman County, the Department filed a motion for dismissal, citing the petitioner's failure to comply with the statute. The Hickman County Circuit Court subsequently granted the motion for dismissal, in part because the petitioner "failed to file an affidavit regarding the history of his prior lawsuits." Mr. Adams filed a motion to alter or amend the judgment, without attaching the required affidavit or citing any reason or justification for failing to do so.
This court has held on more than one occasion that an inmate's failure to comply with Tenn. Code Ann. § 41-21-805 can constitute a sufficient ground to dismiss a petition which was filed in forma pauperis. See, e.g., Bradfield v. Dukes, No. W2001-02067-COA-R3CV, 2002 WL 1760237 (Tenn.Ct.App. April 17, 2002) (No Tenn. R. App. P. 11 application filed); Anderson v. Campbell, No. W2001-00318-COA-R3-CV, 2001 WL 846071 (Tenn. Ct. App July 25, 2001) (No Tenn. R. App. P. 11 application filed). In light of Mr. Adams' repeated failures to furnish the court with the affidavit required by law, we believe the trial court was entitled to dismiss his petition.
IV. THE MOTION TO AMEND THE PETITION
The petitioner also argues that the trial court erred in declining to grant his motion to amend his petition. He cites Rule 15.01 of the Rules of Civil Procedure, which allows a party to amend its pleadings once as a matter of course at any time before a responsive pleading is served, and otherwise by written consent of the other party or by leave of court. The rule goes on to say that "leave of court shall be freely given when justice so requires." Mr. Adams cites a case in which our Supreme Court very pointedly quoted Rule 15.01's "freely given" provisions in reversing the trial court's refusal to grant a motion to amend. Branch v. Warren, 527 S.W.2d 89 (Tenn. 1975); see also Hopper v. Davidson County, 333 S.W.2d 917, 919-920 (Tenn. 1960).
Regardless of the liberality to be afforded motions to amend complaints, in the case before us the question is not really whether the trial court should have granted amendment. That is because no responsive pleading, within the meaning of the rules, had been filed before Mr. Adams filed his amendment. A motion to dismiss is not considered a responsive pleading, and, thus, the filing of such a motion does not require a party who wishes to amend a complaint or petition to obtain leave of court in order to do so. Lester v. Walker, 907 S.W.2d 812, 814 (Tenn.Ct.App. 1995); Mosby v. Colson, No. W2006-00490-COA-R3-CV, 2006 WL 2354763 at *11 (Tenn.Ct.App. Aug. 14, 2006) (no Tenn. R. App. P. 11 application filed). Consequently, Mr. Adams's complaint should have been considered amended.
However, even if the trial court had given Mr. Adams leave to amend his complaint, or, more correctly, if the amendment had been effective, the outcome would have remained the same. Even if the amendment had satisfied the verification requirement, which is questionable, Mr. Adams' failure to comply with Tenn. Code Ann. § 41-21-805 constituted an independent and sufficient ground upon which to dismiss the petition. The proposed amendment did not purport to remedy that omission. Accordingly, any error by the trial court in denying amendment did not affect the outcome of the case.
IV.
The judgment of the trial court is affirmed. We remand this case to the Circuit Court of Hickman County for any further proceedings necessary. Tax the costs on appeal to the appellant, Anthony Adams.