J.Y. Sepulveda v. Tennessee Board of Parole

12/21/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 1, 2018

J.Y. SEPULVEDA v. TENNESSEE BOARD OF PAROLE

Appeal from the Chancery Court for Davidson County

No. 17-1154-III Ellen Hobbs Lyle, Chancellor

No. M2018-00601-COA-R3-CV

In this matter involving a petition for writ of certiorari filed by a self-represented

petitioner, the trial court dismissed the petition for lack of subject matter jurisdiction.

Determining that the petitioner failed to properly verify the truth of the contents of his

petition in accordance with the requirements of Article VI, Section 10 of the Tennessee

Constitution and Tennessee Code Annotated § 27-8-104(a), we affirm the dismissal of

the petition.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.

BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Edward C. Miller, Dandridge, Tennessee, for the appellant, J.Y. Sepulveda.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein,

Solicitor General; and Pamela S. Lorch, Senior Assistant Attorney General, for the

appellee, Tennessee Board of Parole.

OPINION

I. Factual and Procedural Background

The petitioner, J.Y. Sepulveda, filed a pro se petition for writ of certiorari in the

Davidson County Chancery Court (“trial court”) on October 25, 2017. Mr. Sepulveda,

who is an inmate at the Bledsoe County Correctional Complex, alleged that he had been

wrongfully denied parole by the Tennessee Board of Parole (“the Board”) on August 22,

2017. Mr. Sepulveda concomitantly filed a notarized affidavit with his petition, in which

he stated that he had “personal knowledge of matters contained in this affidavit and

verified petition” and had “reviewed the foregoing, verified the Petition and aver that the

facts and allegations stated therein[.]”

On October 30, 2017, the trial court entered an order stating that Mr. Sepulveda

had not complied with the requirements of Tennessee Code Annotated § 41-21-801, et

seq., because he had, inter alia, failed to file a duplicate summons and failed to file the

inmate affidavit required by Tennessee Code Annotated § 41-21-805. Following

additional filings by Mr. Sepulveda, the trial court entered an order on December 11,

2017, recognizing that Mr. Sepulveda had complied with all requirements of Tennessee

Code Annotated § 41-21-801, et seq., other than the filing of a certified copy of his

inmate trust account. Mr. Sepulveda was granted additional time, until January 19, 2018,

to comply with this requirement.

The Board subsequently filed a motion to dismiss on January 16, 2018, asserting

that Mr. Sepulveda’s petition should be dismissed because he had failed to state that it

was the first application for a writ of certiorari and because the petition was not properly

verified.1 Thereafter, Mr. Sepulveda filed an amendment to his petition on January 29,

2018, stating that the petition was his first application for a writ of certiorari. In his

amendment, Mr. Sepulveda also averred that the petition was properly verified but

supplied no additional information or verification.

On March 1, 2018, the trial court entered an order granting the Board’s motion to

dismiss. In this order, the trial court stated in pertinent part as follows:

The Petition for Judicial Review filed October 25, 2017 does not

state that it is the first application for the writ. Also, the Petition states only

that, “I have reviewed the foregoing, verified the Petition and aver that the

facts and allegations state therein.” The Petitioner does not verify that the

allegations stated in the petition are true and correct.

Article 6, Section 10 of the Tennessee Constitution and Tennessee

Code Annotated section 27-8-104(a) require that a petition for common law

writ of certiorari be verified. Jackson v. Tennessee Department of

Correction, 240 S.W.3d 241, 244-45 (Tenn. Ct. App. 2006); Wilson v.

Tennessee Department of Correction, W2005-00910-COA-R3-CV, 2006

WL 325933 at *3 (Tenn. Ct. App. Feb. 13, 2006). Further, Tennessee Code

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On appeal, the Board has abandoned any argument regarding Mr. Sepulveda’s failure to state that his

petition was the first application for a writ. We will, therefore, focus solely on the issue of whether Mr.

Sepulveda’s petition was properly verified.

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Annotated section 27-8-106 requires that the petition state that it is the first

application for the writ. Jackson, supra at 245-46; Wilson, supra at **3-4;

Bowling v. Tennessee Board of Paroles, M2001-00138-COA-R3-CV, 2002

WL 772695 at *3 (Tenn. Ct. App. April 30, 2002). Verification means to

verify that the allegations in the petition are true and correct. Jackson,

supra at 244 (“‘[V]erify’ means ‘to prove to be true; to confirm or establish

the truth or truthfulness of’”). Petitioner fails to confirm the truthfulness of

the allegations.

A court lacks subject matter jurisdiction over a petition for common

law writ of certiorari which is not verified and does not state that it is the

first application for the writ. Jackson, supra at 245-46; Wilson, supra at *4;

Bowling, supra at *3 (citing Depew v. Kings, Inc., 197 Tenn. 569, 571, 276

S.W.2d 728, 729 (1955); Rhea County v. White, 163 Tenn. 388, 397, 43

S.W.2d 375, 378 (1931); Drainage Dist. No. 4 of Madison County v.

Askew, 138 Tenn. 136, 137, 196 S.W. 147, 148 (1917)).

Thus, in this case, the absence of a verification and statement that

the Petition is the first application for a writ must be dismissed based upon

the foregoing law which holds that this Court lacks subject matter

jurisdiction.

The trial court thereby dismissed the petition for lack of subject matter jurisdiction. Mr.

Sepulveda timely appealed.

II. Issue Presented

Mr. Sepulveda presents the following issue for our review, which we have restated

slightly:

Whether the trial court erred in dismissing the petition for writ of certiorari

based on lack of subject matter jurisdiction.

III. Standard of Review

As our Supreme Court has previously explained regarding review of a motion to

dismiss for lack of subject matter jurisdiction:

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

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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).

In addition, this Court has previously explained as follows concerning parties who

proceed self-represented:

Parties who decide to represent themselves are entitled to fair and

equal treatment by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d

222, 227 (Tenn. Ct. App. 2000); Paehler v. Union Planters Nat’l Bank,

Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997). The courts should take

into account that many pro se litigants have no legal training and little

familiarity with the judicial system. Irvin v. City of Clarksville, 767

S.W.2d 649, 652 (Tenn. Ct. App. 1988). However, the courts must also be

mindful of the boundary between fairness to a pro se litigant and unfairness

to the pro se litigant’s adversary. Thus, the courts must not excuse pro se

litigants from complying with the same substantive and procedural rules

that represented parties are expected to observe. Edmundson v. Pratt, 945

S.W.2d 754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d

728, 733 n.4 (Tenn. Ct. App. 1995).

Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003).

IV. Verification of Petition

Mr. Sepulveda avers that the trial court erred by dismissing his petition for writ of

certiorari for lack of proper verification because he filed a notarized affidavit with his

petition. This affidavit provided:

I have personal knowledge of matters contained in this affidavit and

verified petition.

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I am the petitioner herein name and I am entitled to the relief requested

herein.

I have reviewed the foregoing, verified the Petition and aver that the facts

and allegations stated therein

FURTHER AFFIANT SAYETH NOT.

The affidavit was signed by Mr. Sepulveda and notarized by a notary public.

As this Court has previously explained regarding a common law writ of certiorari

and subject matter jurisdiction:

The common law writ of certiorari is the proper mechanism for

challenging a prison disciplinary action. Brown v. Little, No. M2008-

02644-COA-R3-CV, 2009 WL 2166061, at *2 (Tenn. Ct. App. July 20,

2009), perm. app. denied [(Tenn. Jan. 25, 2010)] (citing Rhoden v. State

Dep’t of Corr., 984 S.W.2d 955, 956 (Tenn. Ct. App. 1998)). A petition for

a writ of certiorari must be filed within sixty days of the entry of the

judgment of which the petitioner seeks review. T.C.A. § 27-9-102 (2000);

Blair v. Tenn. Bd. of Prob. & Parole, 246 S.W.3d 38, 40 (Tenn. Ct. App.

2007). “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, 246 S.W.3d at 40 (citing Wheeler v.

City of Memphis, 685 S.W.2d 4, 6 (Tenn. Ct. App. 1984)).

In addition to being timely filed, a petition for a writ of certiorari

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

Constitution and Tennessee Code Annotated § 27-8-104(a). Stephenson v.

Town of White Pine, No. 03A01-9705-CH-00185, 1997 WL 718974, at *1

(Tenn. Ct. App. Nov.13, 1997). . . . Accordingly, a petition that fails to

meet the verification requirement must be dismissed. See Bowling v. Tenn.

Bd. of Paroles, No. M2001-00138-COA-R3-CV, 2002 WL 772695, at *3

(Tenn. Ct. App. Apr. 30, 2002), no perm. app. (citing Depew v. King’s,

Inc., 197 Tenn. 569, 276 S.W.2d 728, 729 (Tenn. 1955); Rhea County v.

White, 163 Tenn. 388, 43 S.W.2d 375, 378 (1931); Drainage Dist. No. 4 of

Madison County v. Askew, 138 Tenn. 136, 196 S.W. 147, 148 (1917)).

Richmond v. Tenn. Dep’t of Corr., No. M2009-01276-COA-R3-CV, 2010 WL 1730144,

at *3 (Tenn. Ct. App. Apr. 29, 2010) (footnote omitted).

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Mr. Sepulveda argues in his appellate brief that his affidavit, filed concomitantly

with his petition, served as adequate verification of the petition. We note, however, that

Mr. Sepulveda’s affidavit is not sufficient merely because it is notarized. As this Court

has frequently explained, in order 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 Jackson v. Tenn. Dep’t of Corr.,

240 S.W.3d 241, 244 (Tenn. Ct. App. 2006); see also Tenn. Const. art. VI, § 10; Tenn.

Code Ann. § 27-8-104, -106 (2017). This Court has also frequently explained that

“[n]otarization and verification are distinct concepts.” Jackson, 240 S.W.3d at 244;

Wilson v. Tenn. Dep’t of Corr., No. W2005-00910-COA-R3-CV, 2006 WL 325933, at *3

(Tenn. Ct. App. Feb. 13, 2006). Notarization “‘acknowledges the proper execution of a

document.’” Jackson, 240 S.W.3d at 244 (quoting D.T. McCall & Sons v. Seagraves,

796 S.W.2d 457, 462-63 (Tenn. Ct. App. 1990)). Verification, on the other hand,

“‘establishes the truth of the document’s contents . . . .’” See Jackson, 240 S.W.3d at 244

(quoting Underwood v. Tenn. Dep’t of Corr., No. W2004-01630-COA-R3-CV, 2005 WL

123501, at *2 (Tenn. Ct. App. Jan. 20, 2005)).

As our sister court, the Tennessee Court of Criminal Appeals, has explained

concerning the distinction between verification and notarization:

Discussion of verified documents usually arises in the context of

analysis of properly acknowledged documents. 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 “[t]o 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, “[a]n

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. Brown, No. 03A01-9405-CV-00171, 1994

WL 666902, at *2 (Tenn. Ct. App. 1994) (discussing the difference

between an acknowledged document and a verified document for purposes

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of self-authentication pursuant to Rule 902(8) of the Tennessee Rules of

Evidence).

Montague v. State, No. E2000-01330-CCA-R3-PC, 2001 WL 1011464, at *1 (Tenn.

Crim. App. Sept. 4, 2001). The Court of Criminal Appeals further elucidated that

“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.” Id. at *2.

This Court has likewise explained that the “sworn and notarized statement

accompanying the petition [for writ of certiorari] must declare that the petition’s

allegations are true to the best of the petitioner’s knowledge.” Cason v. Little, No.

W2007-01910-COA-R3-CV, 2008 WL 2065194, at *3 (Tenn. Ct. App. May 15, 2008)

(citing Adams v. Tenn. Dep’t of Corr., No. M2005-00471-COA-R3-CV, 2007 WL

1574277, at *2 (Tenn. Ct. App. Apr. 13, 2007) (in turn citing Bowling v. Tenn. Bd. of

Paroles, No. M2001-00138-COA-R3-CV, 2002 WL 772695, at *3 (Tenn. Ct. App. Apr.

30, 2002))). As such, a purported verification that does not establish the truth of the

petition’s contents will not suffice. See Best v. Tenn. Dep’t of Corr., No. M2016-00513-

COA-R3-CV, 2016 WL 5724895, at *3 (Tenn. Ct. App. Sept. 30, 2016), perm. app.

denied (Tenn. Jan. 19, 2017); Drumbarger v. State Bd. of Prob. and Parole, No. M2011-

00086-COA-R3-CV, 2012 WL 184422, at *2 (Tenn. Ct. App. Jan. 20, 2012).

For example, in Best, the petitioner utilized the word, “Verified,” in the title of his

notarized petition for writ of certiorari and also included the language, “Petitioner prays

that this Court will . . . [take] the contents of this Petition . . . as being true.” See Best,

2016 WL 5724895, at *3. This Court held that the petitioner had not verified his petition

in accordance with the requirements of Tennessee Code Annotated § 27-8-104(a) and that

the trial court had properly dismissed the petition. Id. Similarly, in Drumbarger, the

petitioner included language in his notarized petition for writ of certiorari that he

“verif[ied] that the preceding petition submitted ha[d] been placed therewith to the best of

[his] knowledge and understanding . . . .” See Drumbarger, 2012 WL 184422, at *1.

This Court agreed with the trial court’s determination that the petition was not properly

verified because the petitioner’s statement did not “establish the truth of the document’s

contents.” Id. at *2.

Likewise, in this case, Mr. Sepulveda failed to affirm that the contents of his

petition were true. Because of this failure, Mr. Sepulveda’s petition did not comply with

the requirements of Article VI, Section 10 of the Tennessee Constitution and Tennessee

Code Annotated § 27-8-104(a). See Richmond, 2010 WL 1730144, at *3. Accordingly,

we conclude that the trial court properly dismissed Mr. Sepulveda’s petition for lack of

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subject matter jurisdiction. See id.; see, e.g., Johnson v. South Cent. Corr. Facility

Disciplinary Bd., No. M2012-02601-COA-R3-CV, 2013 WL 4803565, at *7 (Tenn. Ct.

App. Sept. 6, 2013); Stewart v. Tenn. Bd. of Prob. and Parole, No. M2007-01425-COA-

R3-CV, 2008 WL 2743606, at *3 (Tenn. Ct. App. July 11, 2008).

V. Conclusion

For the foregoing reasons, we affirm the trial court’s dismissal of Mr. Sepulveda’s

petition due to lack of proper verification. Costs on appeal are taxed to the appellant, J.Y.

Sepulveda.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

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