Donald Batiste v. The Memphis and Shelby County Board of Adjustment

04/17/2026

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 5, 2026

DONALD BATISTE ET AL. V. THE MEMPHIS AND SHELBY COUNTY

BOARD OF ADJUSTMENT ET AL.

Appeal from the Chancery Court for Shelby County

No. CH-24-1416 James R. Newsom, Chancellor

No. W2025-00836-COA-R3-CV

The president of a homeowner’s association filed a petition for a writ of certiorari seeking

review of a decision by a local zoning board. The chancery court dismissed the petition,

finding that the petition was insufficiently verified. After review, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J., W.S., and KRISTI M. DAVIS, J., joined.

Robert S. Mink, Jr., and Darrell James O’Neal, Memphis, Tennessee, for the appellants,

Donald Batiste, Vollintine Evergreen Community Association, and Stephanie Walker.

Julie Marie Hale and Robert B. Rolwing, Memphis, Tennessee, for the appellee, Memphis

and Shelby County Board of Adjustment.

Edward J. McKenney, Jr., Memphis, Tennessee, for the appellee, Christopher Roach.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

In October 2024, Donald Batiste, on behalf of himself and the Vollintine Evergreen

Community Association (“VECA”) (collectively, “Petitioners”), filed a petition for a writ

of certiorari and supersedeas in Shelby County Chancery Court seeking judicial review of

a decision of the Memphis and Shelby County Board of Adjustment (“the Board”)

approving a variance sought by Christopher Roach. Mr. Batiste attached to the petition a

declaration under penalty of perjury that the allegations in the petition were true and

correct.

In response, Mr. Roach and the Board each filed a motion to dismiss. The Board

asserted that neither Mr. Batiste nor VECA had standing to seek a writ of certiorari. The

Board also asserted that Mr. Batiste had engaged in the unauthorized practice of law by

filing the petition on behalf of himself and VECA. Mr. Roach’s motion to dismiss similarly

claimed that neither petitioner had standing. Additionally, he asserted that the court lacked

subject matter jurisdiction because the petition was not supported by oath or affirmation as

required by statute. Mr. Roach also claimed that, even if Mr. Batiste and VECA amended

the petition to include an oath, the court would lack subject matter jurisdiction because

more than 60 days would have passed since the Board’s decision.

In December 2024, Petitioners filed an amended petition for a writ of certiorari,

asserting claims similar to those contained in the October 2024 petition. However, this

petition was filed with the assistance of counsel, and the attached declaration now stated

that it was made pursuant to Tennessee Rule of Civil Procedure 72. The Board again filed

a motion to dismiss, asserting largely the same grounds for dismissal. In February 2025,

Petitioners filed a second amended petition for writ of certiorari. Attached to this third

petition was a declaration from Stephanie Walker, and the declaration again cited Rule 72.

The Board and Mr. Roach responded by filing motions to dismiss.

Petitioners filed responses to the two motions, asserting that they had standing and

that the petitions were properly verified because Tenn. R. Civ. P. 72 allows for “‘an

unsworn declaration under penalty of perjury’ to be ‘filed in lieu of an affidavit.’”

Petitioners asserted that, because this rule provides that an unsworn declaration made under

penalty of perjury may take the place of an affidavit, their declaration satisfied the

requirement that the petition for certiorari be supported by a valid affidavit.

On May 9, 2025, the chancery court entered an order granting the motions to

dismiss. The court determined Mr. Batiste had engaged in the unauthorized practice of law

by filing the first petition on behalf of himself and VECA. As a result, the court found the

first petition was a nullity as to the claims it asserted on behalf of VECA. Next, the court

determined that neither petitioner had standing because neither was a party to the Board’s

proceedings. Finally, the court determined that it lacked subject matter jurisdiction because

the petitions were not properly verified and were untimely.

Petitioners timely appealed and present several issues1 for our review; however, one

issue is outcome determinative in this case: “Whether the trial court erred when it

alternatively ruled that this matter must be dismissed because Petitioners utilized

Tennessee Rules of Civil Procedure 72 instead of a sworn affidavit.”

1

Petitioners’ other issues are: “whether the trial court erred when it dismissed the Petitioners’ Writ of

Certiorari, ruling that Tennessee Code Annotated § 27-9-101 et seq. required the Petitioners be parties to

the original proceedings;” “whether the trial court erred when it determined that the filing of a Writ of

Certiorari is the practice of law;” and “whether the trial court erred when it determined that a pro se petition

for writ of certiorari was a nullity.”

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STANDARD OF REVIEW

With respect to a facial challenge to subject matter jurisdiction, the determination

of whether a court has subject matter jurisdiction is a question of law that we review de

novo. Johnson v. Hopkins, 432 S.W.3d 840, 844 (Tenn. 2013) (citing In re Est. of Trigg,

368 S.W.3d 483, 489 (Tenn. 2012)).

ANALYSIS

The chancery court granted the motions to dismiss in part because it determined that

the petitions were not supported by oath or affirmation, thereby depriving the court of

subject matter jurisdiction. Petitioners assert that this was an error because the declarations

made pursuant to Tenn. R. Civ. P. 72 and attached to the end of the petitions were sufficient.

As recently explained by our Supreme Court:

Subject matter jurisdiction concerns a court’s authority to adjudicate

the matter before it. Northland Ins. v. State, 33 S.W.3d 727, 729 (Tenn.

2000). Tennessee courts derive their subject matter jurisdiction either from

the constitution or from statute. Meighan v. U.S. Sprint Commc’ns Co., 924

S.W.2d 632, 639 (Tenn. 1996); see also New v. Dumitrache, 604 S.W.3d 1,

14–15 (Tenn. 2020) (“Statutes or constitutional provisions confer and define

a court’s subject matter jurisdiction, and parties to litigation cannot confer or

expand subject matter jurisdiction by consent or waiver.”). Because a court

may not adjudicate a matter over which it has no subject matter jurisdiction,

subject matter jurisdiction is a threshold issue that may be raised at any time

and is not subject to waiver. Houghton v. Malibu Boats, LLC, --- S.W.3d ---

, ---- n.----, No. E2023-00324-SC-R11-CV, 2025 WL 2971436, at *6 n.12

(Tenn. Oct. 22, 2025).

Berkeley Rsch. Grp., LLC v. S. Advanced Materials, LLC, --- S.W.3d ---, No. W2023-

00720-SC-R11-CV, 2026 WL 181929, at *2 (Tenn. Jan. 23, 2026). As in that case, “our

inquiry begins and ends with subject matter jurisdiction.” Id.

The appropriate method for seeking judicial review of a decision by a local board

of zoning appeals is to file a petition for a common law writ of certiorari pursuant to Tenn.

Code Ann § 27-8-101. Cash v. Wheeler, 356 S.W.3d 913, 915 (Tenn. Ct. App. 2011) (citing

Harding Acad. v. Metro. Gov’t of Nashville & Davidson Cnty., 222 S.W.3d 359, 363 (Tenn.

2007)). Common law writs of certiorari belong to a class of extraordinary judicial remedies

and, as such, are “not available as a matter of right.” Moore v. Metro. Bd. of Zoning

Appeals, 205 S.W.3d 429, 435 (Tenn. Ct. App. 2006). A petition for a writ of certiorari

must be verified in accordance with the requirements of Article 6, Section 10 of the

Tennessee Constitution and Tenn. Code Ann. § 27-8-104(a). Sepulveda v. Tenn. Bd. of

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Parole, 582 S.W.3d 270, 274 (Tenn. Ct. App. 2018) (citation modified). Tennessee Code

Annotated § 27-8-104 provides that circuit and chancery courts have the power to issue

writs of certiorari “on sufficient cause, supported by oath or affirmation.” The code further

provides that the petition for certiorari “may be sworn to before the clerk of the circuit

court, the 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.

A court’s subject matter jurisdiction over a petition is predicated on the verification

requirements of Tenn. Code Ann. § 27-8-106. Blair v. Tenn. Bd. of Prob. & Parole, 246

S.W.3d 38, 40-41 (Tenn. Ct. App. 2007); see also Bd. of Pro. Resp. v. Cawood, 330 S.W.3d

608, 609 (Tenn. 2010) (finding a court lacked jurisdiction over a petition for a statutory

writ of certiorari because it did not comply with this statute). Accordingly, petitions that

fail to meet the verification requirement must be dismissed. Sepulveda, 582 S.W.3d at 274;

see also Talley v. Bd. of Pro. Resp., 358 S.W.3d 185, 192 (Tenn. 2011). Indeed, “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.’” Hirt v. Metro. Bd. of Zoning Appeals

of Metro. Gov’t of Nashville, 542 S.W.3d 524, 528 (Tenn. Ct. App. 2016) (quoting Wilson

v. Tenn. Dep’t of Corr., No. W2005-00910-COA-R3-CV, 2006 WL 325933, at *4 (Tenn.

Ct. App. Feb. 13, 2006)). In Hirt, we held that a petition for a writ of certiorari was

insufficiently supported when the petitioner had attached an oath that provided that “I am

a petitioner in this action . . . and I have personal knowledge of the foregoing facts. I hereby

declare under penalty of perjury that the foregoing is true and correct.” Id. We determined

that the verification statute required that the petition be sworn to before one of the named

individuals in Tenn. Code Ann. § 27-8-106 and, because the oath failed to include the

signature of any such individual, the oath did not comply with the verification requirement.

Id. The language in Hirt is essentially identical to that used by Petitioners in this case.

Petitioners assert that this language was sufficient in this case because of their invocation

of Tenn. R. Civ. P. 72. We respectfully disagree.

It is undisputed in this case that the petitions were not supported by an oath or

affirmation sworn to before any of the individuals listed in Tenn. Code Ann. § 27-8-106.

Instead, Petitioners signed their declarations pursuant to Tenn. R. Civ. P. 72 and assert that

this was sufficient to satisfy the statute’s verification requirements. This argument

necessarily calls upon us to interpret the Tennessee Rules of Civil Procedure, which we

undertake using the following standards:

Interpretation of the Tennessee Rules of Civil Procedure is a question of law,

which we review de novo with no presumption of correctness. Lacy v. Cox,

152 S.W.3d 480, 483 (Tenn. 2004). The rules of statutory construction guide

our interpretation of these rules. Thomas v. Oldfield, 279 S.W.3d 259, 261

(Tenn.2009) (holding that “[a]lthough the rules of civil procedure are not

statutes, the same rules of statutory construction apply”). Our primary

interpretive objective is to effectuate the drafters’ intent without broadening

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or restricting the intended scope of the rule. See Owens v. State, 908 S.W.2d

923, 926 (Tenn. 1995). We achieve this objective by examining the text, and

if the language is unambiguous, we simply apply the plain meaning of the

words used. Garrison v. Bickford, 377 S.W.3d 659, 663 (Tenn. 2012). Our

duty is to enforce the rule as written. See Waldschmidt v. Reassure Am. Life

Ins. Co., 271 S.W.3d 173, 176 (Tenn. 2008).

Fair v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013). Tennessee Rule of Civil Procedure

72 provides that:

Whenever these rules require or permit an affidavit or sworn declaration, an

unsworn declaration made under penalty of perjury may be filed in lieu of an

affidavit or sworn declaration. Such declaration must be signed and dated by

the declarant and must state in substantially the following form: “I declare

(certify, verify or state) under penalty of perjury that the foregoing is true and

correct.”

On this issue, we do not find the rule ambiguous. By the rule’s own language, it

allows “an unsworn declaration made under penalty of perjury” to be filed “in lieu of an

affidavit or sworn declaration” when “these rules require or permit an affidavit or sworn

declaration.” Id. (emphasis added). Therefore, by the rule’s own words, it does not apply

to the statutory provision at issue in this case. Petitioners correctly assert that any conflict

between a statute and the Rules must be resolved in favor of the Rules, but we disagree that

our interpretation creates a conflict between the two. There is no conflict because Rule 72

and the statute do not overlap.2 Petitioners posit that “[t]he question becomes, which rule

applies and how would a party know;” however, Rule 72 and the statute provide that

answer. Rule 72’s provision applies “whenever these rules require or permit an affidavit or

sworn declaration” and Tenn. Code Ann. § 27-8-106 applies to the verification of petitions

for common law writs of certiorari. In summary, there is no conflict.3

To summarize, the statute sets forth the manner in which a petition for a common

law writ of certiorari must be verified, and Tennessee Rule of Civil Procedure 72 does not

2

Indeed, another statute seems to acknowledge that Rule 72 does not apply to statutes because it

expressly incorporates Rule 72’s allowance of an unsworn declaration. See Tenn. Code Ann. § 34-3-

105(g)(4) (“‘Sworn’ means sworn before a notary public or declared under penalty of perjury as set forth

in Tennessee Rules of Civil Procedure, Rule 72.”). It stands to reason that this provision would be

unnecessary if the rule applied to statutes by its own terms.

3

We are similarly unpersuaded by Petitioners’ assertion that the advisory comments to the rule show

that it was intended to be made in accordance with federal procedure, which is more permissive. However,

the federal statute, by its own terms, is more expansive in scope than the state rule. See 18 U.S.C. § 1746

(allowing for an unsworn declaration “[w]herever, under any law of the United States or under any rule” a

sworn declaration is required). These textual differences limit the breadth of the Tennessee rule in a way

the federal statute does not.

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authorize an unsworn declaration under penalty of perjury as an alternative method of

verification. Further, because Rule 72 is inapplicable to this statute, the rule and the statute

do not conflict. Because the petition was not verified, the chancery court lacked subject

matter jurisdiction and correctly dismissed it. Petitioners’ remaining issues are, therefore,

pretermitted. See, e.g., Hirt, 542 S.W.3d at 526. The decision of the chancery court is

affirmed.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed against

the appellants, Donald Batiste, Vollintine Evergreen Community Association, and

Stephanie Walker, for which execution may issue if necessary.

/s/ Andy D. Bennett

ANDY D. BENNETT, JUDGE

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