# FILED
February 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk MARCUS WEST, ) Petitioner/Appell

ant, )

) APPEAL NO. v. ) 01-A-01-9706-CV- 00243 ) TENNESSEE DEPARTMENT OF ) CIRCUIT COURT NO. CORRECTION and MORGAN ) 96C-2353 COUNTY REGIONAL PRISON, ) Respondents/Appelle

es. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE APPEAL FROM THE FIFTH CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE WALTER C. KURTZ, JUDGE

MARCUS WEST, PRO SE TDOC No. 234495 C.C.W.C. Caller #1 Roan Mt., Tenne ssee 37687 JOHN KNOX WALKUP Attorney General and Reporter MICHAEL E. MOORE Solicitor General SOHNIA W. HONG Assistant Attorney General Civil Rights and Claim

s Division 2nd Floor Cordell Hu

ll Building 425 Fifth Avenue No

rth Nashville, Tennessee 37243-0488 ATTORNEY FOR THE RESPONDENTS/APPELLEES

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE2 

## O PINION This is an ap peal by petitioner/appella nt, Marcus West,

from an order of th

e trial court granting the motion to d ismiss for failure to state a basis for

a writ of certiorari or summary judgment of respondents/appel

lees, the Tennessee Depar

tment of Correction (“the Departme nt”) and the Morgan County Reg ional Facility (‘th

e Facility”). Th

e facts out of whic

h this matter arose

are as follows.

The Facility charged A

ppellant on 20 Novembe r 1995 with

con spiracy to violatestate law. The Facility’s disciplinary board held a hea ring and convicted Appellant of the offense. Appellant appealedto the Facility’s w arden who denied the appeal. On 26 April 1996, the Commissioner of Cor

rection denied Appe

llant ’ s second appeal.
Appellant filed a petition for wri

t of certiorari in

the Davidson

County Circuit Court on 21 June 1996. Appell ant a lleged t

he Facility: 1) deni

ed Appellant the opportunityto call witnesses on his behalf; 2) denied Appellant an adequate written stateme nt of the fact finder; 3) improperly relied on unverified, unsubstantiated information

from an informant;

and 4) failed to adhe

re to the time requirem

ent in the Facility’s regulations. Appe llees filed a motion

to dismiss or for

summary judgment
on 21 August 1996. Appelle es claimed the peti

tion failed to state

a basis for the wr

it of certiorari. The motion containe d a notice to Appella

nt which stated: Pursuant to Local rules § 12.05(c), Davidson County Local Rules of Practice, the P

etitioner is hereby notified that the abov e motion will be heard on Friday, t

he 27th day of Septem

ber, 1996, at 9:00 a .m. in Davidson County Circuit Cou rt. You are further notified that a failure to f ile, serve and enter a timely w

ritten response to the

motion in the motion book

will result in the motion being granted without further h earing. Counsel for the Resp ondents has requested

that the above motion be heard with out oral argument. Appellant delivered his response to an individua l at the correctional fac

ility on 25 Sep tem ber

1996, and the clerk filed the response on 30 September 1996. The trial court filed an order

on 13 December

1996 granting Appelle

es’ motion and dismissi

ng the petition. The orde

r stated: “wherein it

appears that no time

ly response was fil

ed, the Motion is well taken a nd should be granted.” Appell ant filed a motion to reconsiderthe order of dismiss al on 19 December 1 9 96. The tri al court denied Appellant’s motion on 23 April 1997. In the

meantime, Appel

lant filed a notice o

f3

appeal on 15 January 1997. T he only issue is whethe r the tr ial court er red in dismissing the petition.
Appellees contend that the trial court correctly gr anted the motion pursuant to local rule 12.04. This rule states in p ertinent part as fo

llows: (c) If the motion i s oppo sed, a written r esponse to the motion must be filed and served on all parties. The res pons e shall state with particularity

the grounds for

opposition to the motion, supported by legal authority, if appli

cable. If no res

ponse is filed, the m

otion shall be granted. (d) Responses to motions, including cou nter-affidavits, deposit ions, briefs or any other matters presente

d in opposition to motions, must be filed with th e clerk's office

by the close of busines s on the Monday be fore the Fri day on which the motion is to be heard. In Chancery cases, a notation of the filing of a respo

nse must be entered on the motion book at t

he time the response is filed. The respo nse must also be served u

pon al l parties no later than 5:00 p.m. on the Monday before the Friday

on which the motion is t o be heard.

. . . . (f) IF NO RESPONSE IS TIMELY FILED AND SERVED, AND IN CHANCERY CASES EN TERED IN THE MOTION BOOK, THE MOTION SHALL BE GRANTED A ND COUNSEL OR PRO SE LITIGANT NEED NOT

APPEAR IN COURT AT THE TIME AND DATE SCHEDULED FOR THE HEARING. Counsel or pro se litigant shall then submit the propose d order consistent w

ith Local Rule

25. The order shall recite

that no response was

timely filed or ser

ved. D AVIDSON C O
. C TS
. OF R EC
. R. 12.04(c), (d) & (f). Appe llees properly set t

he hearing for Friday, 27 Septem

ber 1996. Thus, the

deadline for Appel

lant’ s response to the motion was Monday, 23 September 1996. The trial court f

iled Appellant’s r

esponse on 30 September, one week after the deadline.
Appellant contends this court should apply the “ mailbox rule” there

by causing the filin g date t o be the date the inma te delivers the docum

ents to the appropria

te individual atthe correctional f acility. Despite

Appellant’s conten

tion, we do not have to decid e whethe r to apply the “mailbo x rule.” To expla

in, Appellant admi

ts he delivered the response to an in d ividual at the correctional facility on 25 September 1996, two days afte

r the deadline for the response. Thus, eve n if this court were to adopt the “mailbox

rule” and apply it to t

he instant case, w

e would still

come to the conclusion that Appel

lant’s response wa

s not timely filed.
Appellant makes numerous argu

ments based o n the differences between4

motions for summary judgmen t and motions to

dismiss. The natur

e of the motion is irrelevant, however, for the purposes of t his appeal. Rule 12. 04(c) of the Davids on County Local Rules speci fically provides tha

t a non-movant

shall file a response to
a motion if the motion is opposed . Moreover, as p reviously stated, th

e court must grant t he motion pursuant to Ru le 12.04(f) if the

non-movant does not fil e the response on the Monday before t

he Friday on which th

e motion is to be

heard. Thus, the rules required Ap

pellant to file a tim

ely response

regardless of the t

ype of motion or suffer the conse

quences of the trial

court granting the mo

tion.
Having reviewed and consi dered each of Appe

llant’s argument,

it is the opinion of this court that the trial court properl y dism issed the petition for writ of certiorari. Therefore, th e decis io n of the trial court is affirmed and the case is remanded for any further ne cessary proceedin

gs. Costs of

appeal are taxed a

gainst petitioner/appella

nt, Marcus West.

_____________________________ SAMUEL L. LEWIS, JUDGE

CONCUR:

_______________________________ BEN H. CANTRELL, JUDGE

_______________________________ WILLIAM C. KOCH, JR, JUDGE