FILED

Nov. 17, 1995

Cecil Crowson,

Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

EARL L. FOX, )

)

Plaintiff/Appellant, )

) Davidson Chancery

) No. 94-2505-III

VS. )

) Appeal No.

) 01-A-01-9506-CH-00263

TENNESSEE BOARD OF PAROLES, )

)

Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

For the Plaintiff/Appellant: For the Defendant/Appellee:

Earl L. Fox Charles W. Burson

Pro Se AttorneyGeneral and Reporter

Patricia C. Kussmann

Nashville, Tennessee

AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
1Tenn. Code Ann. § 39-1-702(3) (repealed 1989).

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O P I N I O N

This appeal involves the denial of parole to an inmate serving a twenty-year

sentence for aggravated rape. The inmate filed a petition for common-law writ of

certiorari in the Chancery Court for Davidson County challenging the Tennessee

Board of Parole’s decision. The trial court granted the board’s motion to dismiss.

We affirm the dismissal because the inmate’s petition fails to state a claim upon

which relief can be granted. A common-law writ of certiorari cannot be used to

review the intrinsic correctness of the parole board’s decision. 

I.

Earl Lee Fox committed a brutal rape on October 30, 1984. His victim

came to his residence looking for her grandmother. She attempted to leave after

learning that her grandmother no longer lived there, but Mr. Fox forced her into

the house, threw her onto a bed, and used a machete to force her into submission.

The victim later escaped and ran to a local security office for help. 

In July 1985, a criminal court jury in Knox County found Mr. Fox guilty of

aggravated rape, an offense classified as a Class X crime at the time.1

 The

criminal court judge later sentenced Mr. Fox to serve twenty years in the state

penitentiary. The Court of Criminal Appeals affirmed the conviction, and the

Tennessee Supreme Court denied his application for permission to appeal. State

v. Fox, 733 S.W.2d 116 (Tenn. Crim. App. 1987). Mr. Fox is presently

incarcerated in the Carter County Work Camp. 

Mr. Fox had a parole hearing on July 5, 1994. Thereafter, one board

member commented that he was a "very violent person." On July 13, 1994, Mr.

Fox received notice that the entire board had declined to parole him. After

exhausting his administrative appeals, Mr. Fox filed a petition for common-law

writ of certiorari in the Chancery Court for Davidson County. The parole board

responded with a Tenn. R. Civ. P. 12.02(1) motion to dismiss for lack of subject

matter jurisdiction. The trial court dismissed the petition because Mr. Fox was
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seeking relief beyond that available under a common-law writ of certiorari. Mr.

Fox has perfected this appeal.

II.

We turn first to the basis of the parole board’s motion to dismiss. The board

asserted that the trial court lacked subject matter jurisdiction over Mr. Fox’s

petition because it challenged the intrinsic correctness of its decision to deny him

parole. The board’s reliance on Tenn. R. Civ. P. 12.02(1) was misplaced. 

The concept of subject matter jurisdiction involves a court’s lawful

authority to adjudicate a controversy brought before it. Turpin v. Conner Bros.

Excavating Co., 761 S.W.2d 296, 297 (Tenn. 1988); 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,

Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994), and can only be conferred

on a court by constitutional or legislative act. 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).

Tenn. Code Ann. § 27-8-104(a) (1980) empowers circuit courts to issue

common-law writs of certiorari “in all civil cases . . . from any inferior

jurisdiction.” With several exceptions not applicable here, Tenn. Code Ann. § 16-

11-102(a) (1994) imbues chancery courts with concurrent jurisdiction over the

civil causes of action triable in circuit court. Accordingly, the board’s reliance on

Tenn. R. Civ. P. 12.02(1) was not well-taken because the trial court had subject

matter jurisdiction to entertain petitions for common-law writs of certiorari such

as the one filed by Mr. Fox in this case.

III.

The erroneous reference to Tenn. R. Civ. P. 12.02(1) in the parole board’s

motion to dismiss does not necessarily undermine the correctness of the trial

court’s disposition of Mr. Fox’s petition. The basis of the board’s motion and of
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the trial court’s order was that a common-law writ of certiorari could not be used

to review the intrinsic correctness of the board’s decision. This reasoning is more

consistent with a Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state

a claim than it is to a Tenn. R. Civ. P. 12.02(1) motion to dismiss for lack of

subject matter jurisdiction. 

Since we construe motions in light of their substance, Bemis Co. v. Hines,

585 S.W.2d 574, 576 (Tenn. 1979); Pickard v. Ferrell, 45 Tenn. App. 460, 471,

325 S.W.2d 288, 292-93 (1959), we will construe both the motion and the order

dismissing the petition as if they were based on Tenn. R. Civ. P. 12.02(6). Thus,

we will review the dismissal of Mr. Fox’s petition using the standards applicable

to motions to dismiss for failure to state a claim upon which relief can be granted.

A Tenn. R. Civ. P. 12.02(6) motion tests a complaint’s sufficiency. Cook

v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). A complaint

should be dismissed only when it contains no set of facts that would entitle the

plaintiff to relief. Pemberton v. American Distilled Spirits Co., 664 S.W.2d 690,

691 (Tenn. 1984). Thus, courts must take all well-pleaded allegations in the

complaint as true and must construe the complaint liberally in favor of the

plaintiff. Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d at 938; Dobbs v.

Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992). 

A common-law writ of certiorari provides a vehicle for reviewing the parole

board’s decisions. Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 872-

73 (Tenn. Ct. App. 1994); Brigham v. Lack, 755 S.W.2d 469, 471 (Tenn. Crim.

App. 1988). The scope of review available pursuant to a common-law writ is,

however, extremely narrow because courts may only review the proceedings to

determine whether the board exceeded its jurisdiction or whether it acted illegally,

fraudulently, or arbitrarily. Yokley v. State, 632 S.W.2d 123, 126 (Tenn. Ct. App.

1981). Thus, a common-law writ of certiorari permits a court to review the

manner in which the board reached its decision but not to review the intrinsic

correctness of the decision itself. Powell v. Parole Eligibility Review Bd., 879

S.W.2d at 873; see also State ex rel. McMorrow v. Hunt, 137 Tenn. 243, 250-51,

192 S.W. 931, 933 (1917).
2Tenn. R. Civ. P. 15.01 permits litigants to amend their pleadings “at any time before a

responsive pleading is served” and also instructs the courts that “leave [to amend] shall be freely

given when justice so requires.”

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IV.

We now turn to the question of whether Mr. Fox’s petition states a claim for

relief that can be granted under a common-law petition for writ of certiorari. The

petition itself contains nothing but chronological information concerning Mr.

Fox’s conviction and the denial of parole. It does not explain how the board’s

decision was beyond its jurisdiction or how it was illegal, fraudulent, or arbitrary.

We apply less stringent standards to pro se pleadings than to pleadings

prepared by lawyers. Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S. Ct. 173, 176

(1980); Haines v. Kernes, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596 (1972); Baxter

v. Rose, 523 S.W.2d 930, 939 (Tenn. 1975). However, even pro se litigants must

satisfy applicable substantive and procedural requirements. While they cannot

shift the burden of the litigation to the courts or to their adversaries, pro se

litigants are entitled to the same liberality of construction of their pleadings that

Tenn. R. Civ. P. 1, 8.05, and 8.06 provide to other litigants. Irvin v. City of

Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988).

The adequacy of a complaint being challenged by a Tenn. R. Civ. P.

12.02(6) motion depends solely on the adequacy of the allegations in the

complaint itself. Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d at 938. If we

were to limit our consideration to Mr. Fox’s petition alone, we would find that it

fails to pass muster because it states no claim at all. However, Mr. Fox expanded

on the substance of his petition in his response to the parole board’s motion to

dismiss. We have determined that Mr. Fox’s response should be treated as an

amendment to his original petition.

2

Mr. Fox’s response to the parole board’s motion demonstrates that his

petition rests on the holding in Mayes v. Trammell, 751 F.2d 175, 179 (6th Cir.

1984) that inmates in Tennessee’s prisons have a constitutionally protected liberty

interest in being paroled. We have recently held, however, that the Mayes v.

Trammell decision has only limited present value because of the intervening
3Tenn. R. Civ. P. 8.01 requires all pleaders, including pro se plaintiffs, to include a "short

and plain statement of their claim showing that the pleader is entitled to relief." Mr. Fox's brief

in this court contains facts that were not included in his original petition or in his response to the

board's motion to dismiss. We have not considered these facts because they were not properly

presented to the trial court.

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changes in the parole board’s regulations governing eligibility and consideration

for parole. Kaylor v. Bradley, App. No. 01-A-01-9504-CH-00144, slip op. at 6-7,

20 T.A.M. 34-40 (Tenn. Ct. App. Aug. 4, 1995). Inmates in Tennessee no longer

have a protected liberty interest in being paroled. Wright v. Trammell, 810 F.2d

589, 591 (6th Cir. 1987).

Even though Mr. Fox may not have a constitutional basis for his claim, he

may be able to make out a claim for relief by demonstrating that the board failed

to provide him with a right or benefit to which he was entitled under a state statute

or regulation. We have examined Mr. Fox’s original petition and his response to

the parole board’s motion to dismiss and find no factual allegation that would

warrant relief under a common-law writ of certiorari.

3

Giving his pleadings their most charitable construction, Mr. Fox appears to

be taking issue with the denial of his parole on three grounds: (1) the board

member’s comment that he was a “very violent person”; (2) the failure to afford

him an opportunity to challenge the constitutionality of statutory preconditions for

his parole eligibility; and (3) the denial of an opportunity to present evidence on

his own behalf. None of these reasons, even if true, entitle Mr. Fox to judicial

relief.

Only the entire parole board has the authority to grant or deny parole. Tenn.

Code Ann. § 40-28-116(a)(1) (Supp. 1995); Tenn. Code Ann. § 40-35-503(a)

(Supp. 1995); Tenn. Comp. R. & Regs. r. 1100-1-1-.07(3)(d) (1985). Individual

members cannot make these decisions on their own, and, therefore, the comment

of an individual board member cannot be imputed to the entire board unless it is

reflected in the board’s decision. Mr. Fox did not allege that the entire board

denied him parole solely because he was a “very violent person,” even though he

could very easily have done so since the board was required to provide him with

written reasons for its decision. See Tenn. Comp. R. & Regs. r. 1100-1-1-
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.07(3)(b), (e) (1985). Accordingly, Mr. Fox’s challenge to the individual board

member’s comment failed to state a claim upon which relief could be granted.

The remaining two grounds for Mr. Fox’s petition are equally ineffectual.

He did not allege that he was denied parole because of the board’s reliance on an

unconstitutional statutory precondition to parole eligibility. Similarly, he did not

allege that the evidence that he would have presented to the board did not

duplicate the information already provided to the board in the comprehensive

parole summary report prepared by the institutional authorities before every

inmate’s parole hearing. Tenn. Code Ann. § 40-28-106(e)(2) (Supp. 1995). Mr.

Fox’s conclusory allegations are insufficient to state a claim that the board acted

arbitrarily by denying the benefits to which he is entitled by statute and regulation.

Reduced to its essence, Mr. Fox’s petition takes issue with the correctness

of the board member’s comment that he is a “very violent person.” In addition to

failing to allege a connection between this comment and the boards’s decision to

deny him parole, Mr. Fox is doing nothing more than challenging the intrinsic

correctness of the comment itself. This is beyond the scope of the remedies

available through a common-law writ of certiorari. 

V.

We affirm the dismissal of Mr. Fox’s petition for failure to state a claim

upon which relief can be granted and remand the case to the trial court for

whatever further proceedings may be required. We also tax the costs of this

appeal to Earl Lee Fox for which execution, if necessary, may issue.

__________________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________

HENRY F. TODD, P.J., M.S.

__________________________________

SAMUEL L. LEWIS, JUDGE