IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

ASSIGNED ON BRIEFS OCTOBER 14, 2005

REGINALD D. HUGHES v. TENNESSEE BOARD OF PAROLE

Direct Appeal from the Chancery Court for Lauderdale County

No. 13009-38 Martha B. Brasfield, Chancellor

No. W2005-00838-COA-R3-CV - Filed December 20, 2005

The Appellant, an inmate in the custody of the Tennessee Department of Correction, filed a

handwritten pro se petition seeking review by common law writ of certiorari following a denial of

parole by the Tennessee Board of Probation and Parole. The board filed a motion to dismiss the

petition, citing several defects with the Appellant’s petition. The trial court granted the Appellant

time to cure the defects. The Appellant subsequently filed a motion to amend his petition in an effort

to comply with the trial court’s directives, however, the trial court subsequently entered an order

dismissing the Appellant’s petition. Thereafter, the Appellant filed a post-trial “Motion to Rehear.”

When the trial court did not address the motion, the Appellant filed a notice of appeal to this Court.

We hold that the Appellant’s post-trial motion is, in actuality, a motion to alter or amend the

judgment, therefore, we remand the case to the trial court for further proceedings on the motion.

Tenn. R. App. P. 3; Appeal as of Right; Case Remanded to the Chancery Court for Further

Proceedings

ALAN E.HIGHERS,J., delivered the opinion of the court, in which DAVID R. FARMER,J., and HOLLY

M. KIRBY, J., joined.

Reginald D. Hughes, pro se, Henning, TN

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Bradley W.

Flippin, Assistant Attorney General, for Appellee
 Rule 10 of the Rules of the Court of Appeals of Tennessee provides as follows:

1

This Court, with the concurrence of all judges participating in the case,

may affirm, reverse or modify the actions of the trial court by memorandum opinion

when a formal opinion would have no precedential value. When a case is decided

by memorandum opinion it shall be designated “MEMORANDUM OPINION”,

shall not be published, and shall not be cited or relied on for any reason in any

unrelated case.

 The statute provides as follows:

2

Such party shall, within sixty (60) days from the entry of the order or judgment, file

a petition of certiorari in the chancery court of any county in which any one (1) or

more of the petitioners, or any one (1) or more of the material defendants reside, or

have their principal office, stating briefly the issues involved in the cause, the

substance of the order or judgment complained of, the respects in which the

petitioner claims the order or judgment is erroneous, and praying for an accordant

review.

Tenn. Code Ann. § 27-9-102 (2000). 

(continued...)

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MEMORANDUM OPINION1

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

Reginald D. Hughes (hereinafter “Hughes” or “Appellant”) is presently an inmate in the

custody of the Tennessee Department of Corrections at the West Tennessee State Penitentiary in

Henning, Tennessee. The Criminal Court of Shelby County sentenced Hughes to two consecutive

thirty year sentences on October 8, 1997 after he was convicted of two counts of second degree

murder. Hughes became eligible for parole on June 20, 2003, and the Tennessee Board of Probation

and Parole (hereinafter “Board” or “Appellee”) convened a hearing on that date to discuss Hughes’

eligibility for parole. Following the hearing, the Board voted to deny Hughes parole and set his next

parole hearing for the year 2013. 

On January 14, 2004, Hughes filed a handwritten pro se petition in the Chancery Court of

Davidson County seeking review of the Board’s decision by writ of certiorari. Therein, Hughes

stated that he was making “no challenge to the intrinsic correctness of the Board’s decision to decline

[him] parole, only the length of future review.” Hughes asserted that the Board’s decision to set his

next parole hearing for the year 2013 was arbitrary, capricious, and illegal because it violated his

Fifth, Eighth, and Fourteenth Amendment rights under the United States Constitution. On February

13, 2004, the Board filed a motion to dismiss Hughes’ petition pursuant to Rule 12 of the Tennessee

Rules of Civil Procedure, asserting the following: (1) Hughes filed the petition beyond the sixty-day

limit set forth in section 27-9-102 of the Tennessee Code, therefore, the chancery court was without 2
(...continued) 2

 The statute provides that “[t]he petition for certiorari may be sworn to before the clerk of the circuit court,

3

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.” Tenn. Code Ann. § 27-8-106 (2000). 

 In its brief filed on appeal, the Board asserts that it erred in arguing that Hughes filed his petition in an

4

improper venue in its motion to dismiss. The Board, citing to our decision in Hawkins v. Tenn. Dep’t of Correction,

127 S.W.3d 749, 763 n.16 (Tenn. Ct. App. 2002), argues that “[a]ctions challenging the decisions of the Tennessee

Board of Probation and Parole are properly brought in the courts of Davidson County.” 

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jurisdiction to hear the case; (2) Hughes’ petition failed to state a claim for which relief can be

granted because it did not satisfy section 27-8-106 of the Tennessee Code; and (3) Hughes’ filed 3

the petition in an improper venue. On February 26, 2004, Hughes responded to the Board’s motion

by asserting that he filed an administrative appeal to the Board, which the Board denied on

November 12, 2003. 

On May 5, 2004, the Chancery Court of Davidson County entered an order transferring the

case to the Chancery Court of Lauderdale County where West Tennessee State Penitentiary is

located. On October 19, 2004, the Chancery Court of Lauderdale County entered an order finding 4

that “it appears that the 60-day statute of limitations deadline should be calculated from the date on

which the [Board] denied [Hughes’] final administrative appeal, if such an appeal was made.” The

chancery court ruled that Hughes should have until January 18, 2005 to submit documentation

showing the date on which the Board denied his administrative appeal and to amend his petition to

cure any defects. On November 17, 2004, Hughes filed a “Motion to Amend Petition for Common

Law Writ of Certiorari.” In an effort to ensure that his petition complied with section 27-8-106 of

the Tennessee Code, Hughes alleged that this was his first application for review by common law

writ of certiorari. In an effort to comply with section 27-9-102 of the Tennessee Code, Hughes also

attached a copy of his request for an administrative appeal of the Board’s decision dated September

8, 2003 and a letter from the Board dated November 12, 2003 denying his appeal. 

On March 7, 2005, the chancery court entered an order dismissing Hughes’ petition. The

chancellor noted that the court gave Hughes until January 18, 2005 to cure any defects in his petition

and to submit documentation showing the date on which theBoard denied his administrative appeal.

The court ruled that, “[a]s of the date of this order, [Hughes] has not filed the documentation as

required in the order of October 19, 2004.” On March 18, 2005, Hughes filed a handwritten “Motion

to Rehear” asking the chancery court to reexamine its denial of his petition for common law writ of

certiorari. Therein, Hughes cited his compliance with the court’s prior order by filing his motion to

amend the petition on November 17, 2004. When the chancery court did not address his motion,

Hughes filed a pro se notice of appeal to this Court on April 6, 2005 raising numerous issues for our
 Hughes asks this Court to, in essence, grant him the following relief: (1) reverse the 2013 review date set by 5

the Board and order that his next parole review date be no more than three years from the initial denial of parole by the

Board, (2) reverse the prison’s decision to remove him from his current housing classification and place him in another

housing unit, (3) to award him punitive damages in the amount of $50,000.00 against the Tennessee Department of

Correction, and (4) return him to his old job at the prison with back pay and a pay increase. Most of the issues raised

by Hughes are not the proper subject of an appeal of this nature. However, we need not address the propriety of each

individual issue raised by the Appellant given our need to remand this case to the trial court for further proceedings.

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review. We remand this case to the chancery court for further proceedings on the Appellant’s 5

“Motion to Rehear.”

I. DISCUSSION

The Board argues that this appeal is premature because the trial court has not entered a final

order addressing Hughes’ “Motion to Rehear.” The Board cites to no authority in its brief to support

this proposition. When the record presents an issue regarding this Court’s appellate jurisdiction, we

must consider the issue regardless of whether it is properly raised by the parties. See Tenn. R. App.

P. 13(b) (2005); Huntington Nat’l Bank v. Hooker, 840 S.W.2d 916, 922 (Tenn. Ct. App. 1991).

Rule 4 of the Tennessee Rules of Appellate Procedure requires an appellant to file his or her

notice of appeal “within 30 days after the date of entry of the judgment appealed from.” Tenn. R.

App. P. 4(a) (2005). “This deadline may be extended by filing certain post-judgment motions.” Lee

v. State Volunteer Mut. Ins. Co., No. E2002-03127-COA-R3-CV, 2005 Tenn. App. LEXIS 26, at

*18 (Tenn. Ct. App. Jan. 21, 2005) (no perm. app. filed). Regarding the tolling of the time for filing

a notice of appeal, Rule 4 provides as follows:

In a civil action, if a timelymotion under the Tennessee Rules

of Civil Procedure is filed in the trial court by any party: (1) under

Rule 50.02 for judgment in accordance with a motion for a directed

verdict; (2) under Rule 52.02 to amend or make additional findings

of fact, whether or not an alteration of the judgment would be

required if the motion is granted; (3) under Rule 59.02 for a new trial;

(4) under Rule 59.04 to alter or amend the judgment; the time for

appeal for all parties shall run from the entry of the order denying a

new trial or granting or denying any other such motion.

Tenn. R. App. P. 4(b) (2005); see also Tenn. R. Civ. P. 59.01 (2005) (“These motions are the only

motions contemplated in these rules for extending the time for taking steps in the regular appellate

process.”).

After the chancerycourt entered the order dismissing his petition, Hughes filed a handwritten

document with the trial court entitled “Motion to Rehear.” We have recently addressed such postjudgment motions, stating:
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Under the current rules of practice, filing a post-judgment

“motion to rehear” in the trial court may easily amount to a fatal,

self-inflicted appellatewound. Motions to rehear have not existed for

over thirty-three years. Mash v. Mash, 1989 Tenn. App. LEXIS 182,

No. 88-165-II, 1989 WL 22704, at *2 (Tenn. Ct. App. Mar. 15, 1989)

(No Tenn. R. App. P. 11 application filed); 4 NANCY FRASS

MACLEAN ET AL., TENNESSEE PRACTICE § 59:9, at 344 (3d

ed. 2000). Thus, they are not one of the post-judgment motions

specifically listed in Tenn. R. App. P. 4(b) and Tenn. R. Civ. P. 59.01

that have the effect of extending the time for filing a notice of appeal.

However, too many lawyers continue to file post-judgment “motions

to rehear,” “petitions for reconsideration,” or “petitions to rehear” and

then attempt to rely on the motion or petition to extend the time for

filing their notice of appeal.

When a lawyer files a post-judgment motion called a “petition

to rehear” or some other name not clearly referenced in Tenn. R. App.

P. 4(b) or Tenn. R. Civ. P. 59.01, the appellate courts must parse

through the body of the petition or motion to determine whether it

requests the sort of relief available through one of the four motions

specifically listed in Tenn. R. App. P. 4(b) or Tenn. R. Civ. P. 59.01.

Tennessee Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d 453, 455

(Tenn. 1998); In re Estate of McCord, 1986 Tenn. App. LEXIS 2764,

No. 85-271-II, 1986 WL 2014, at *3 (Tenn. Ct. App. Feb. 13, 1986)

(No Tenn. R. App. P. 11 application filed). If the relief requested in

the petition or motion is not the sort of relief that may be sought by

one or more of the four motions specifically listed in Tenn. R. App.

P. 4(b) or Tenn. R. Civ. P. 59.01, then the motion will not be

considered to be one that tolls the running of the time for filing a

notice of appeal.

Lee, 2005 Tenn. App. LEXIS 26, at *18–20 (emphasis added) (footnotes omitted). When evaluating

Hughes’ “Motion to Rehear,” we are mindful that he is a pro se litigant. “Pro se litigants who

invoke the complex and sometimes technical procedures of the courts assume a very heavy burden.”

Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988) (citing Gray v. Stillman

White Co., 522 A.2d 737, 741 (R.I. 1987)). “Pro se litigants are entitled to fair and equal treatment.”

Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000) (citing Childs v.

Duckworth, 705 F.2d 915 (7th Cir. 1983)). “Pro se litigants are not excused from complying with

the same substantive and procedural requirements that other represented parties must adhere to.”

Id. (citing Irvin, 767 S.W.2d at 652); see also Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn. Ct.

App. 1996). However, the courts of this state must be mindful of the fact that “many pro se litigants

have no legal training and little familiarity with the judicial system.” Young v. Barrow, 130 S.W.3d

59, 62–63 (Tenn. Ct. App. 2003) (citing Irvin, 767 S.W.2d at 652). “Pro se litigants are entitled to

the same liberality of construction with regard to their pleadings that Tenn. R. Civ. P. 1, 8.05 & 8.06
 In federal courts, the motion to alter or amend must be filed within ten days after the trial court enters the 6

judgment in a case. See Fed. R. Civ. P. 59(e) (2005). In Tennessee courts, “[a] motion to alter or amend a judgment

shall be filed and served within thirty (30) days after the entry of the judgment.” Tenn. R. Civ. P. 59.04 (2005). The

chancery court entered the order dismissing his petition on March 7, 2005. Hughes filed his motion on March 18, 2005.

Thus, Hughes filed his motion within thirty days of the entry of the judgment at issue. 

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afford any other litigant.” Irvin, 767 S.W.2d at 652 (citing Estelle v. Gamble, 429 U.S. 97, 106

(1976)). Moreover, “[t]he courts give pro se litigants who are untrained in the law a certain amount

of leeway in drafting their pleadings and briefs.” Young, 130 S.W.3d at 63 (citing Whitaker, 32

S.W.3d at 227). “Accordingly, we measure the papers prepared by pro se litigants using standards

that are less stringent than those applied to papers prepared by lawyers.” Id. (citations omitted); see

also Baxter v. Rose, 523 S.W.2d 930, 939 (Tenn. 1975). Courts “should give effect to the substance,

rather than the form or terminology, of a pro se litigant’s papers.” Young, 130 S.W.3d at 63

(citations omitted).

In his “Motion to Rehear,” Hughes argued that he complied with the chancery court’s

October 19, 2004 order directing him to submit documentation showing the date on which the Board

denied his administrative appeal and to cure any defects in his original petition. Regarding the

substance of a Rule 59 motion, we have noted the following:

The Federal Rules of Civil Procedure, like the Tennessee

Rules of Civil Procedure, do not recognize a motion or petition for

reconsideration. 12 JAMES WM. MOORE ET AL., MOORE'S

FEDERAL PRACTICE § 59.30 [*21] [7] (3d ed. 1997) ("MOORE'S

FEDERAL PRACTICE"). However, when a motion or petition for

reconsideration is filed within ten days following the entry of the

judgment, the federal courts will treat it as a Rule 59(e) motion to 6

alter or amend as long as it is requesting a substantive alteration of

the judgment, not merely the correction of a clerical error or relief of

a type wholly collateral to the judgment itself. 12 MOORE'S

FEDERAL PRACTICE § 59.30[2][b]; 11 CHARLES ALAN

WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §

2810.1, at 121 (2d ed. 1995) (“FEDERAL PRACTICE AND

PROCEDURE”). When it is debatable whetherthe motion should be

characterized as substantive or not, it should be characterized as

substantive. Herzog Contracting Corp. v. McGowen Corp., 976 F.2d

1062, 1065 (7th Cir. 1992).

Neither the federal nor the state version of Rule 59 lists

specific grounds for a motion to alter or amend. Accordingly, trial

courts have considerable discretion in granting or denying the motion.

As a general matter, there are four basic grounds upon which a

motion to alter or amend may be granted. First, the moving party may

demonstrate that it is necessary to correct manifest errors of law or

fact upon which the judgment is based. Second, the motion may be
 In its motion to dismiss, the Board argued that Hughes filed his petition in an incorrect venue. On appeal, the 7

Board now concedes that Hughes did not file his petition in an incorrect venue when he submitted it to the Chancery

Court of Davidson County. Thus, Hughes needed only to cure the aforementioned defects in order to avoid a dismissal

of his petition.

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granted to permit the moving party to present newly discovered or

previously unavailable evidence. Third, the motion may be justified

by an intervening change in the controlling law. Fourth, the motion

may be granted when necessary to prevent a manifest injustice. 11

FEDERAL PRACTICE AND PROCEDURE § 2810.1, at 124-27; 12

MOORE'S FEDERAL PRACTICE § 59.30[5][a].

Lee v. State Volunteer Mut. Ins. Co., No. E2002-03127-COA-R3-CV, 2005 Tenn. App. LEXIS 26,

at *20–22 (Tenn. Ct. App. Jan. 21, 2005) (emphasis added) (no perm. app. filed). 

In substance, Hughes’ motion amounts to a motion to alter or amend the judgment dismissing

his petition. Therein he asserts that the chancery court overlooked the documentation he provided

when he filed his motion to amend his petition on November 17, 2004. After reviewing the record,

we cannot say that Hughes’ motion is wholly without merit. The Board asserted that Hughes’

petition was defective for two reasons: (1) he failed to demonstrate that he filed his petition within

the sixty-day limit allowed by section 27-9-102 of the Tennessee Code, and (2) he failed to certify

that his petition constituted his first application for a writ of certiorari as required by section 27-8-

106 of the Tennessee Code. On October 19, 2004, the chancery court entered an order giving 7

Hughes until January 18, 2005 to correct these defects. On November 17, 2004, well within the time

permitted by the chancery court, Hughes filed a motion to amend his petition. Therein, in an effort

to comply with section 27-8-106 of the Tennessee Code, he asserted that this was his first application

for a common law writ of certiorari. Moreover, in an effort to comply with section 27-9-102 of the

Tennessee Code, he submitted two exhibits with his motion: (1) a copy of his request for an

administrative appeal of the Board’s decision, and (2) a copy of a letter from the Board dated

November 12, 2003 denying his administrative appeal. Strangely, the chancery court entered an

order on March 7, 2005 holding that “[a]s of the date of this order, [Hughes] has not filed the

documentation as required in the order of October 19, 2004.” In any event, we need not decide

whether Hughes’ motion to alter or amend the judgment should be granted. This is an issue properly

left to the trial court’s discretion. See Lee, 2005 Tenn. App. LEXIS 26, at *22. 
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It is apparent from the record before this Court on appeal that Hughes’ motion is, in

substance, a motion to alter or amend the judgment of the chancery court filed pursuant to Rule

59.04 of the Tennessee Rules of Civil Procedure. “[C]ertain post-trial motions, such as a motion to

alter or amend pursuant to Tennessee Rule of Civil Procedure 59.04, if timely filed, toll

commencement of the thirty-day period until an order granting or denying the motion is entered.”

Albert v. Frye, 145 S.W.3d 526, 528 (Tenn. 2004) (citations omitted); see also Binkley v. Medling,

117 S.W.3d 252, 255 (Tenn. 2003). Accordingly, we remand this case to the chancery court for

resolution of the Appellant’s post-trial motion. Costs of this appeal are to be taxed equally to the

Appellant, Ronald D. Hughes, and the Appellee, the Tennessee Board of Probation and Parole, for

which execution may issue if necessary.

___________________________________ 

ALAN E. HIGHERS, JUDGE