# FILED September 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE
BILLY LATTIMER ) ) Petitione r/App ellant, ) Appeal No. ) 01A01-9804-CH-00200 vs. ) ) Davidson Chancery TENNESS EE DEPAR

TMENT ) No. 98-489-II OF C ORR ECT ION , ET A L., ) ) Defendan ts/Appellees. ) ) APPEAL FROM THE CHANCERY COU RT FOR DAVIDSON COUNTY THE HONORAB LE CHANCELLOR McC OY PRES IDING BILLY LATT IMER, #91238 Turney Center Industri al Prison Route 1, Only, Tennessee 37140-9709 ACTING P

RO SE F OR PETI

TIONER /APP ELLANT JOHN KNOX WALKUP Attorney Genera

l and Report

er MICHAEL E. MOORE Solici tor General ELENA J. XOINIS Assista nt Attor ney General Civil Rights

and Claims Division 425 5 th Aven ue No rth Nashville, Tennessee 37243- 0488 ATTORNEYS FOR RESPONDENTS/ APPELLEES AFFIRMED IN PART, REVERSED IN PART AND REMA NDED
PATRI CIA J . COTTRELL, JUDGE CONCUR: CANTREL L, P.J., M.S. KOCH , J.

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## OPINION This is an appeal from the dismiss al of a Petit ion for Declaratory Judgment by the Ch ancer y Cou rt of Da vidson Coun ty. The petitione r, B ill y La ttimer (“Petitioner”), is serving a sentence i n the custody of the

Tennessee Department of Corre ction. He argues that the trial courtimproperly dismiss ed his lawsuit f or lack of j urisdiction. We agree. During his incarceration at Nort heast Correcti onal Center , Petitioner accrued a lar

ge collect

ion of phot

ographs (ove

r 1,000 phot

os), which

he kep t in two bound volumes. He alleged t hat many of th

e photos were Po laroid pictures of his family taken dur

ing their visits t

o him as part of a pris on photo project and others were purchased f rom a v endor affili ated with the Department. In any event, Petitioner

acquired or possessed t he photographs with the knowledge and perm ission of the De partm ent. In 1995 or 1996, the Department’s policy regarding photographs changed, and inmates were no longer per mitted t o acquire Polaroids. Petit ioner alleges that the policy p rovide d that tho se pic tures al ready in the po ssession of an in mate would not be confi scated so l ong as the i

nmate was not t

he subject

of cer ta in disciplinary actions or was not permanently transferr ed to another insti tution. The p olicypermitt

ed inmates who were t

ransferr ed to mail t

heir collec tions elsewhere , but if this was not

accompl ished w ithin thi rty days, the col

lections were to be destroyed. In Febru ary of 1 997, P etiti oner was temporarily transferred from Northe ast Correcti onal Center for a court date. U pon his return,Petit ioner di scovered t

hat his photos were con fiscated. He fi led a grievance with t

he Department. The Petit ioner allegesthat

while thi s grievanc e was stil l pending,

he learned t

hathis

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photos had been destroyed. Mr Lattim er fil ed the above mentioned pro se petition in the Chancery Court o f Dav idson C ounty . He styled it a “Uniform Adminis trati ve Procedures Act Petition P ursuan t to Ten n. Cod e. Ann . § 4-5-1 01, et seq. for D eclaratory Judgm ent.” Petitione r sough t, in addition to t he declar atory ju dgme nt, $3,66 0 in actual damages, and $15, 000 in punitive damages , as well as a man dato ry injunct ion that all seizures of pri soner Pola roid phot ographs cease
. The defen dants d id not re spond to the petiti on and filed no pleadi

ngs in the chancery court b efore th e trial co urt is sued a sua spo nte order dismissi ng the clai m. Finding t

hat thi s was an action primaril y for damages t

o property , the t

rial court concluded that it lacked jurisdiction to hear Mr. La ttimer’s lawsuit because it involved unliquidated dam ages. I. The petition f iled her ein see ks relief , inter alia , unde r the Uni form Administrative

Proce dures A ct, spec ifically a declar atory ju dgme nt pursu ant to Tenn. Code Ann. § 4-5-101, et seq . The defendants argue that the petition s hould be dism issed fo r failure to state a claim u nder th at statute . Tenn. Code

Ann. § 4- 5-2 24 al

lows a party to seek a declar atory judgment to challen ge the “ legal va lidity or a pplicab il i ty of a st atute, rule or or

der of an agency to specified circumst ances.” Tenn. Code Ann. § 4-5-224 (a) (Supp. 1998). A prerequisit

e to such an action,howe ver, is tha t the par ty first seek a declaratory order f rom th e agen cy. Id .; Tenn. Code Ann. § 4-5-224(b). In the petitio n filed h erein, th ere is no allegation t hat petiti oner first s ought
a declaratory or

de r from the De partm ent. Th e reco rd inclu des no such re quest. Therefore, the chancery court lacked jurisdiction to hear Petit ioner’s declaratory1 Although defendants did not raise this issue below, we are not precluded from

considering it on appeal. Because it is an issue of jurisdiction, it may be raised at any time. “Subject matter jurisdiction may never be waived and the lack thereof may be challenged at any stage of the proceedings.” Wunderlich v. Fortas , 776 S.W.2d 953 (Tenn. App. 1989).

2 We note that Petitio

ner seeks injunct

ive and declara

tory relief, in ad

dition to monetary damages, for alleged deprivation of his constitutional rights. Regardless of the caption of Petitioner’s pleading, its substance must be examined. See Norton v. Eve rhart , 895 S.W.2d 317, 319 (

Tenn. 1995); see also Haines v. Kerner , 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). 

### 4 judgment action brought under t he U.A.P .A. See Watson v. Tennessee Dep’t of Correction , 970 S.W
. 2d 494 , 497 (T enn. A pp. 199 8); Pearson v. Garrett Fin. Serv., In c., 849 S.W.2d 776, 780 (Tenn . App. 1992) (where a court has reached the correct

result , it will not

be reversed even if the result was predicat

ed on an
erroneous reason). Thus, t o the exte nt the dismiss al of the case was also a dismiss al of the Tenn . Code Ann. § 4-5-224 clai m, we aff

irm. 1 II. The Ch ancery Court premised the dismissal of thi s case on Tenn. Code Ann. § 16-11 -102 (1980). Th at statute states: (a) The chancery court has concurrent j urisdicti on, with thecircuit court, of all civi

l causes of action, triabl e in the circui

t court, except for unliquidated damages for injuries t

o person orcha racter, and except for unliquidated damages for injuries t

o property not resulting from a breach of

oral or writt

en contract; and

no demurrer for want of jurisdiction of the c ause o f action shall be sustaine d in the cha ncery court, e xcept in the cas es exc epted. (b) Any suit

in the nat

ure of the cases excep ted abo ve bro ught in the chanc ery co urt, wh ere ob jection h as not b een tak en by a plea to the jurisdict

ion, may be transferr

ed to the circui

t court of the count

y, or heard and determined by the chancery court upon the principles of a co urt of law
. Tenn. Code Ann. § 16-11-102. The C hance ry Court her ein deter mined that

Petit ioner’slawsuit

was “prim arily an action f

or damages for l

oss of prop erty”, 2 and t hat such damages
were unliquidated and did n ot arise from a breach of cont ract. The co

urt then

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determined

that it had no j urisdicti on over such cases, rel ying on Tenn . Code Ann. § 16-11-102. Howeve r, the court’s holding fail s to recognize the ef fect of subsection

(b) of thestatute. T hat sub section clearly provid es that in the absence of an objecti

on, chancery c ourt has juris dicti on oversuch cases. Where, as here,
no objection to j urisdicti on is interpos ed, the chancery court may either hear the
case o r transfe r it to circu it court. The Supreme C ourt of Tennessee has interpret

ed Tenn. Code Ann. § 16- 11-102 to require tr

ansfer, rather

than di smissa l, e ven in situat ions where the chancery court has no subject matter jurisdiction. In Flowe rs v. Dy er Cou nty , 830 S. W.2d 51 (Tenn . 1992) , the Co urt held that Te nn. Co de An n. § 16-11-102(b)
m andatedt ransfer f

rom the chancery

court to the circuit cour

t, rat her than dismiss al, of a case broug ht under t

he Governmental Tor

t Liabil ity Act,which provided that circui

t courts have exclus ive jurisdi ction over any action brought pursua nt to the A ct. The Court recently addre ssed a similar situation i n Woods v. MTC Management , 967 S.W.2d 800 (Tenn . 1998) . Woo ds filed h is com plaint, which all eged numerous violations o f the Unifo rm Residential Landlor d Tenant Act (“URLTA ”), Tenn . Code Ann. § 66-26 -501, et seq., in chancery court . URLTA specifies that

general sessions

courts and circui

t courts have original juri sdiction
over casesbrought und er it . Te nn. Code A nn. § 66-28-105(a) (1993). The chancery court dismissed t he suit and

denied W oods’ motion to transfe r the case to circuit court . Relying onTenn. Code Ann. §16-11 -102 (b), the Court a ffirmed the chanc ery co urt’s find ing that it l a cked subject matter j urisdicti on, but determined

that the denial of the mo tion to transfer was re versible error. In so doing, the Court made clear that “§ 16-11-102 require d the chanc ery co urt to

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transfe r the lawsui

t . . . to circuit court

for furt her proceedings.” Wo ods , 967 S.W.2d at 802. Thus, even if the defendants herein had objected to the court’s jurisdict ion, dismiss al of M r. Lattim er’s cla im wo uld have b een im prope r. See Pauley v. Madison Coun ty , No. 02A01-9607-CH-00161, 1997 WL 110019 at *2- 3 (Tenn. App. 1997) (no Tenn. R. App. P. 11 application filed). Unlike the cases ci

ted above, no objection

to jurisdic tion wa s filed in th is
case. This leave s the ch anc ery co urt with one m ore op tion than the cou rts in those cases. The case “may be transferr ed to the cir cuit court of t he county, or heard a nd determ ined by the chancery court upon t he principles of

a court of law.” Tenn. Code Ann § 16-11-102. IV. On appeal, Pe

titioner suggest

s that t he chancery cour

t has prope

r jurisdict ion because his clai

m is based on an i

mplied cont

ract wit h the sta te. In view o f our ho lding, this argum ent is no w mo ot. V. Ac cordin gly, the dismissal by the trial

court on the basis

of lack of jurisdict ion is affirmed as to the claim brought under the Uniform Administrative ProceduresAct, bu t is reversed as to any other claims, andthis cas e is remanded for furth er proc eeding s. Costs o f this app eal are taxed to Appe llees.

___ _______ ______________________ _ PATRI CIA J . COTTRELL, JUDGE CONCUR:

___________________________________ BEN H. CA NTR ELL , P. J., M .S.

___________________________________ WILLIAM C. KOC H, J R., JUDGE