IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned On Briefs July 20, 2010

PAUL KEENER v. TENNESSEE BOARD OF PROBATION AND PAROLE

Direct Appeal from the Chancery Court for Davidson County

No. 07-1404-II Carol L. McCoy, Chancellor

No. M2009-01788-COA-R3-CV - Filed August 11, 2010

This is an appeal from the denial of a Rule 60.02 motion to set aside a prior order of

dismissal. The trial court dismissed an inmate’s petition for writ of certiorari for failure to

comply with Tennessee Code Annotated sections 41-21-805 and -807, which govern inmate

lawsuits. Nearly two years later, the inmate filed a Rule 60.02 motion to set aside the order

of dismissal. The trial court denied the motion and the inmate appealed. Because the trial

court did not abuse its discretion in denying the requested relief, its ruling is affirmed.

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

and Remanded

DAVID R. FARMER, J., delivered the opinion of the Court, in which HOLLY M. KIRBY, J. and

J. STEVEN STAFFORD, J., joined.

Paul Keener, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General,

Jennifer L. Brenner, Assistant Attorney General, for the appellee, Tennessee Board of

Probation and Parole.

MEMORANDUM OPINION

1

Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

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be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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 petitioner/appellant, Paul Keener, is an inmate at the Hardeman County

Correctional Facility in Whiteville, Tennessee. On May 23, 2007, Mr. Keener filed a petition

for common law writ of certiorari with the Chancery Court of Davidson County seeking

review of the actions of the Tennessee Board of Probation and Parole (“the Board”). On

June 26, 2007, the trial court issued an order giving Mr. Keener thirty days to comply with

the mandatory procedures of Tennessee Code Annotated section 41-21-801 etseq. pertaining

to inmate lawsuits. The court specifically directed Mr. Keener to submit the following: (1)

a filing fee or affidavit of indigency, (2) a copy of the complaint/petition for each defendant,

(3) a summons form in duplicate for each defendant, (4) a special inmate affidavit pursuant

to Tennessee Code Annotated section 41-21-805, (5) a current certified copy of the inmate’s

trust account statement showing all activity for the six-month period immediately preceding

the filing of the petition pursuant to Tennessee Code Annotated section 41-21-807, and (6)

a partial payment of the filing fee in an amount to be determined pursuant to Tennessee Code

Annotated section 41-21-807. On September 21, 2007, the trial court dismissed Mr.

Keener’s petition for failure to comply with the statutory requirements set forth in its June

26th order. Nearly two years later, Mr. Keener moved to set aside the court’s judgment

pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. The trial court denied Mr.

Keener’s motion, concluding that he failed to “provide any rationale or reasoning [to]support

his request.” Mr. Keener timely appealed.

2

The sole question before this Court is whether the trial court abused its discretion

when it denied Mr. Keener’s motion to set aside its prior order of dismissal. Rule 60.02 of

the Tennessee Rules of Civil Procedure provides, in pertinent part:

On motion and upon such terms as are just, the court may relieve a party

or the party’s legal representative from a final judgment, order or proceeding

for the following reasons: (1) mistake, inadvertence, surprise or excusable

neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an adverse party; (3) the judgment

is void; (4) the judgment has been satisfied, released or discharged, or a prior

judgment upon which it is based has been reversed or otherwise vacated, or it

is no longer equitable that a judgment should have prospective application; or

(5) any other reason justifying relief from the operation of the judgment. The

Mr. Keener’s notice of appeal, which he filed within thirty days of the denial of his Rule 60 motion, 2

states that he is appealing a final judgment from August 13, 2003. There is no such order in this record. The

notice of appeal, however, also states that Mr. Keener is appealing the final judgment of Chancellor Carol

L. McCoy from the Davidson County Chancery Court. Given the timing of the filing, the appellant’s pro

se status, and the absence of any suggestion that the notice of appeal failed to fairly apprise the Board that

Mr. Keener intended to appeal the denial of his Rule 60.02 motion, we interpret the notice of appeal as

pertaining to the current action and find no bar to our review.

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motion shall be made within a reasonable time, and for reasons (1) and (2) not

more than one year after the judgment, order or proceeding was entered or

taken.

Tenn. R. Civ. P. 60.02. Rule 60.02 “provides an exceptional remedy that enables parties to

obtain relief from a final judgment.” Delong v. Vanderbilt Univ., 186 S.W.3d 506, 511

(Tenn. Ct. App. 2005) (citing Nails v. Aetna Ins. Co., 834 S.W.2d 289, 294 (Tenn. 1992);

Hungerford v. State, 149 S.W.3d 72, 76 (Tenn. Ct. App. 2003)). The rule “acts as an escape

valve from possible inequity that might otherwise arise from the unrelenting imposition of

the principle of finality imbedded in our procedural rules.” Thompson v. Firemen's Fund Ins.

Co., 798 S.W.2d 235, 238 (Tenn. 1990). “Because of the importance of this ‘principle of

finality,’ the ‘escape valve’ should not be easily opened.” Toney v. Mueller Co., 810 S.W.2d

145, 146 (Tenn. 1991). Courts grant relief under Rule 60.02 “only in those few cases that

meet one or more of the criteria stated.” Id.

The burden to demonstrate a basis for relief under Rule 60.02 is on the movant. Banks

v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn. 1991) (citing Brumlow v. Brumlow, 729

S.W.2d 103, 106 (Tenn. Ct. App. 1986); Jefferson v. Pneumo Servs. Corp., 699 S.W.2d 181,

186 (Tenn. Ct. App. 1985)). “The bar for obtaining relief is set very high, and the burden

borne by the moving party is heavy.” Delong, 186 S.W.3d at 511 (citing Johnson v. Johnson,

37 S.W.3d 892, 895 n.2 (Tenn. 2001)). Even if grounds for relief are proven, the trial court

may refuse in its discretion to set aside a judgment. John Barb, Inc. v. Underwriters at

Lloyds of London, 653 S.W.2d 422, 423 (Tenn. Ct. App. 1983) (citing Tenn. R. Civ. P.

60.02). A failure to persuade the trial court to exercise its discretion in favor of granting

relief is difficult to overcome: “In practical effect, a trial court’s determination of whether

to grant relief pursuant to Rule 60.02 is virtually conclusive.” Robert Banks, Jr. & June F.

Entman, Tennessee Civil Procedure §12-3[d], at 12-56 (3d ed. 2009) (footnote omitted).

This Court will overturn a trial court’s decision to grant or deny relief under Rule

60.02 only if the court has abused its discretion. Henry v. Goins, 104 S.W.3d 475, 479

(Tenn. 2003) (citing Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993)). “The

abuse of discretion standard requires us to consider: (1) whether the decision has a sufficient

evidentiary foundation; (2) whether the trial court correctly identified and properly applied

the appropriate legal principles; and (3) whether the decision is within the range of

acceptable alternatives.” Thompson v. Chafetz, 164 S.W.3d 571, 574 (Tenn. Ct. App. 2004)

(citing State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000)). The

abuse of discretion standard does not allow this Court to substitute the panel’s judgment for

the judgment of the trial court. Henry, 104 S.W.3d at 479 (citation omitted). Rather, we will

uphold the decision of a trial court so long as reasonable minds can disagree about its

correctness, Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001), and will set aside the

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court’s decision only if the court has applied an incorrect legal standard or has reached an

illogical or unreasoned decision that causes an injustice to the complaining party, Pegues v.

Ill. Cent. R.R. Co., 288 S.W.3d 350, 353 (Tenn. Ct. App. 2008) (citing Mercer v. Vanderbilt

Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004)).

Mr. Keener filed the motion at issue pursuant to Rule 60.02(5), which permits a trial

court to relieve a party from a final judgment for “any . . . reason justifying relief from the

operation of the judgment.” Tenn. R. Civ. P. 60.02(5). “Despite its broad language, the

courts construe Tenn. R. Civ. P. 60.02(5) narrowly.” Delong v. Vanderbilt Univ., 186

S.W.3d 506, 511-12 (Tenn. Ct. App. 2005)(citing Federated Ins. Co. v. Lethcoe, 18 S.W.3d

621, 625 (Tenn. 2000); Underwood, 854 S.W.2d at 97). “Accordingly, the bar for obtaining

relief under Tenn. R. Civ. P. 60.02(5) is even higher than the bar for obtaining relief under

the other grounds in Tenn. R. Civ. P. 60.02.” Id. at 512 (citing Tenn. Dep't of Human Servs.

v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985); Beason v. Beason, 120 S.W.3d 833, 840

(Tenn. Ct. App. 2003)). Mr. Keener, however, did not provide any rationale or reasoning to

support his motion before the trial court, clearly failing to carry the heavy burden to

demonstrate that relief was appropriate. It can hardly be said, therefore, that the trial court

abused its discretion when it denied the motion.

Mr. Keener neverthelesssubmits on appeal that it would be a fundamental miscarriage

of justice to preclude his petition from going forward, citing his status as a pro se inmate who

is unlearned in the law and cannot afford to retain legal counsel. This Court, however, has

recognized that “‘[p]risoners and other non-lawyers who represent themselves are not

excused from complying with the same applicable substantive and procedural law that

represented parties must comply with.’” Richardson v. Tenn. Bd. of Probation and Parole,

No. M2008-02568-COA-R3-CV, 2009 WL 3046960, at *3 (Tenn. Ct. App. Sept. 23, 2009)

(quoting Bowling v. Tenn. Bd. of Paroles, No. M2001-00138-COA-R3-CV, 2002 WL

772695, at *3 n.6 (Tenn. Ct. App. Apr. 30, 2002)) (citing Hodges v. Tenn. Att'y Gen., 43

S.W.3d 918, 920 (Tenn. Ct. App. 2000)). And adoption of Mr. Keener’s position—that

courts should not require pro se inmates to comply with the aforementioned procedural

requirements—would effectively exempt pro se inmates from the statutory scheme that the

General Assembly specifically developed to govern such actions, which is not within the

province of this Court. See Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 517 n.2

(Tenn. 2005) (recognizing that it is not the role of the judiciary to rewrite statutes in order

to remedy perceived unfairness). Having reviewed the record, we hold that the trial court did

not abuse its discretion when it denied Mr. Keener’s Rule 60.02 motion. Its decision is

affirmed.

3

We note that the question of whether the trial court dismissed Mr. Keener’s petition with or without 3

(continued...)

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Conclusion

For the foregoing reasons, we affirm the denial of Mr. Keener’s Rule 60.02 motion

to set aside the court’s prior order of dismissal. Costs of this appeal are taxed to the

appellant, Paul Keener, for which execution may issue if necessary.

_________________________________

DAVID R. FARMER, JUDGE

(...continued) 3

prejudice is not before us, nor is the question of whether the court should have dismissed the petition with

or without prejudice. See Williams v. Bell, 37 S.W.3d 477, 480 (Tenn. Ct. App. 2000) (holding that failure

to comply with Tennessee Code Annotated section 41-21-805 warranted dismissal without prejudice).

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