# FILED
May 23, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

DAVID L. WASHINGTON, ) ) Plaintiff /Appella nt, ) Davidson Chancery

) No. 94-2550-III VS. ) ) Appeal N o. DEPARTMENT OF CORRECTION, ) 01A01-9506- CH-00276 ET AL., ) ) Defenda nts/Appell ees. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

For the P laintiff/

Appellant : For the Defendants/Appellees : David L. Washington Charles W . Burson Pro Se Attorney General and Reporter Merrilyn Feirman Assistant Attorney General



## VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 Tenn. Ct. A pp. R. 10(b ) provide s as follow s: The Court, with

the concurrenc e of all ju dges par ticipating i n the case, may affirm, revers e or modif y the act ions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided

by memo randum opinion it shall be designated "MEMORANDUM OPI NION," sha ll not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.
2 Three months before initiating this suit, Mr. Washington f i led another suit in the Criminal Court for

Wash ington C ounty seeking relief from his sentence. The criminal cour t dismissed the petition, and the Court of Criminal Appe als affirmed. Washington v. State, App. No. 03C01-9411-CR-00407, 1995 WL 227900 (Tenn. Crim. App. April 18, 1995), perm. app. denied (Tenn., July 3, 1995). -2-



## MEMORANDU M OPINION

This appeal involves a pri soner’s c hallenge to the Depa rtment of Correction’s calculat

ion of his se ntence re duction cre dits. Af ter exhau sting his departmental remedies, the prisoner filed a declarat ory jud gment act ion in the Chancery Court for Davidson County. The trial court granted the Department’s motion for

summary judgment and dismissed the complaint. We have determined that the recor

d does not suppo rt grantin g a summar y judgment a

nd, acco rdingly, vacate the judgment pursuant to Tenn. Ct. App. R. 10(b). 1

I.
David Washington is serving seventy to seventy-five years fo r rap e, burglary, grand larcen y, and peti t larceny. He has been incarce rated sinc e 1976 and is present

ly housed at the North eas t Correc tional Center in Mount ain City. After twenty ye ars behind bars, Mr . Washing ton questione d the calculat ion of his parol e eligibility date and asserted that the Department of Correction had misfigured his sentence reduction credits under Tenn. Code A n n. § 41-21- 236 (1990). After the Depa

rtment’s response t

o his complaint proved unsatisfa ctory, Mr. Washington

filed suit in the Chan cery Cour t for Da vidson County r

equesting the cou rt to correct his sentence expiration date and to award him the sentence reduction credits to which he wa s entitled. 2
Rather than answering Mr. W ashington’s petition fo r declaratory judgm ent, the Department responded immediat ely by filing for summary judgment. Instead of specifyin g the grounds f

or the summ ary judgme nt, the mo tion merely a sked for asummary j udgment and recited t hat groun ds for t he motion were set out in an-3-

accompanying memorand um o f law. The moti on refer red to no supp orting materials of any type.
Mr. Wash ington moved t o strike the

Departm ent’s moti on because

“the Res po ndents have not re flected a ny exhibits or

proof to jus tify that sa id calculat ion of his [sic ] sentence i s correct.” He also complaine d that the S tate "did [not] . . . supply petitioner the affidavit of Faye Claud as r eflecte d on their memorand

umi n support of motion to the C ourt as [i] ndicated by certifi cate of service on the pet itioner." He supported these asse rtions wit h an affi davit to the same effect. Inits order granting the Department’s motion, the trial court recited that “[f]rom the material submittedby the defendant in suppor t of its mot

ion for summary judgment, it appears to the Court that the plaintiff’s sentences and parole eligibility are cor rectly ca lculated. ” Mr. W ashington ha s appeale d to this cour t.
II.
Tenn. R. Civ. P. 56.02

expressly provides tha

t a defend

ing partyi n a declaratory judgment ac tion may, at any time , move fo r summar y judgment w ith or without supp orting aff

idavits. W

hen a defending party moves for a summary judgment, it bears the initial burden of producing sufficient evidence to support its motion and to satisfy the trial court that the material evidence is u ndisputed, Byrd v. Hall , 847 S.W .2d 208, 21 3 (Tenn. 1993); Burgess v. Harley , 934 S.W.2 d 58, 62 (Tenn. Ct. App. 1996), and that it is entitled to a judgme nt as a mat ter of law. Anderson v . Standard R egister Co
. , 857 S.W.2d 555, 559 (Tenn. 1993).
The Depart ment has not shoulde red its bur

den of proof

in this case . The trial court’s ju dgment ref

ers to “material” submitted by the Department in support of its motion for summary ju dgment; how ever, th e appella te recor d does not contain this mater

ial. On June 24, 1996, this c ourt order ed the cle rk and master to prepare

and transm

it a supplem

ental rec ord containing the materia l supporting the Department’s motion. The clerk and master subsequently filed a supplemental record containing a

copy of the Department’s memorand um of law

filed wi th its summary jud gment motion. This memoran dum refe rs to an af

fidavit by F aye Claud, but the supplemental re cord did not contain Ms. Clau d’s affi davit. Again, on April30, 1997, this court ordered the clerk and master to certif y and trans mit asecond supplemental record specifically to consist of the aff idavit of FayeClaud, the Depa rtment of Correct ion manage

r of sente nce infor

mation ser

vices. On May 20, 1996, the clerk and master certified to this court that her office had no such af fidavit.
Mr. Was hington’s ve

rified petition puts a

t issue the m aterial facts concernin g the corr

ect calcul ation of his sentence . The st atements in the Department’s motion and memorand

um of law in supp ort of summ ary judgme nt do not constitut

e evidenc e of

the facts in Mr. Washingt on’s case, State v. Dykes , 803 S.W.2 d 250, 255 (Tenn. Crim. App. 1990) ; Price v . Mercu ry Supply Co

. , 682 S.W.2 d 924, 929 n. 5 (Tenn. Ct. App. 1984), and those law yer-wr

itten statements alone do not remo ve all genu ine issu es of fact in this case. T he reco rd in its present state requires this court to find that the Department has failed to carry its burden of providingcompetent evidence upon which t

he trial c ourt could pr

operly conclude that there

are no gen

uine issues co ncerning th e materi al facts of this dispute. Accordi ngly, we have no choi ce other t han to vaca

te the orde

r dismissin g the compl aint.
III.
We vacate the summary judgment and remand this case to the chancery courtfor furt

her proce edings consi stent with this opinion. We also t ax the cost s to the Dep artment o f Corre ction.

________________ __ __________ WILLIAM C. KOCH, JR., JUDGE CONCUR:

_________________

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

_________________

_______________ SAMUEL L. LEWIS, JUDGE