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FILED

January 21, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

JAMES COLWELL, ) C/A No. 01A01-9806-CH-00292

 ) 

Plaintiff-Appellant, )

 )

 )

 )

v. ) APPEAL AS OF RIGHT FROM THE

 ) DAVIDSON COUNTY CHANCERY COURT

 )

 )

CHARLES TRAUGHBER, CHAIRMAN OF ) 

THE TENNESSEE BOARD OF PAROLES,)

 )

 ) HONORABLE ELLEN HOBBS LYLE,

Defendant-Appellee. ) CHANCELLOR 

For Appellant For Appellee 

JAMES COLWELL JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

Nashville, Tennessee Nashville, Tennessee

 JOHN R. MILES

 Attorney General’s Office

 Civil Rights and Claims Division

 Nashville, Tennessee

O P I N I O N

 

AFFIRMED AND REMANDED Susano, J.
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 This is an action filed by James Colwell seeking a new

parole hearing. The plaintiff appealed the trial court’s grant

of summary judgment to the defendant, Charles Traughber, Chairman

of the Tennessee Parole Board. The plaintiff, in his petition

for writ of certiorari, asserts that the Tennessee Parole Board

(“Board”) acted illegally, fraudulently, arbitrarily, and

capriciously in denying him parole. The trial court granted the

defendant’s motion for summary judgment upon finding that the

plaintiff had failed to carry his burden of overcoming the

properly-supported summary judgment motion of the defendant. On

this appeal, plaintiff essentially presents the following

question for our review: In granting summary judgment, did the

trial court err when it determined that no genuine issue of

material fact exists?

I.

 The plaintiff is currently serving a 26-year sentence for

second degree murder and escape. At the plaintiff’s parole

hearing in June, 1996, a hearing officer recommended that parole

be denied because of the seriousness of the offense and the

results of the plaintiff’s psychological evaluation. The Board

adopted this recommendation. After exhausting his administrative

remedies, the plaintiff then filed a petition for writ of

certiorari in the trial court.

 The plaintiff asserts that the Board acted illegally,

fraudulently, arbitrarily, and capriciously in making its

decision, by considering three different versions of the Facts of
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This issue is not before us on appeal.

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Offense Report, along with black and white photographs that he

claims unfairly depict the crime scene. The plaintiff further

contends that the Board abused its discretion by relying on an

incorrect criminal history and by preventing him from offering

evidence at the hearing. 

The plaintiff filed various motions seeking to compel

production of documents relating to his original conviction. 

These motions were denied by the trial court as being outside the

scope of the writ of certiorari.1

The defendant filed a motion for summary judgment

asserting that there are no genuine issues of material fact. He

supported his motion with an affidavit of the Custodian of the

Records of the Board; the transcript of the June 4, 1996, parole

hearing; the Board’s office files regarding the plaintiff; and a

statement of undisputed facts.

The plaintiff responded to this motion with a motion to

dismiss the defendant’s motion for summary judgment and/or enter

summary judgment in his favor. He did not support his response

with any affidavits or additional evidence.

 The trial court granted the defendant’s motion for

summary judgment based on the plaintiff’s failure to show that a

genuine issue of material fact existed. This appeal followed.
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 II.

Our standard of review on a grant of summary judgment

is well-settled. “Our inquiry involves purely a question of law;

therefore, we review the record without a presumption of

correctness to determine whether the absence of genuine issues of

material facts entitle the defendant to judgment as a matter of

law.” Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). See

also McCarley v. West Quality Food Service, 948 S.W.2d 477 (Tenn.

1997); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Byrd v.

Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Hardesty v. Service

Merchandise Co., Inc., 953 S.W.2d 678, 684 (Tenn.App. 1997). The

moving party -- in this case, the defendant -- has the initial

burden of producing competent, material evidence showing that

there is no genuine issue as to any material fact. Byrd, 847

S.W.2d at 211. This burden may be met by either affirmatively

negating an essential element of the nonmoving party’s claim or

by conclusively establishing an affirmative defense. Id. at 215

n.5. 

 If the moving party successfully negates an essential

element of a claim, the nonmoving party must then establish that

there are disputed material facts creating genuine issues that

must be resolved by the trier of fact. Id. at 215. The

nonmoving party cannot rely on his pleadings to overcome a

properly-supported motion for summary judgment. Id.; Robinson,

952 S.W.2d at 426; McCarley, 948 S.W.2d at 478-79; Rule 56.06,

Tenn.R.Civ.P. The nonmoving party may contradict the factual
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predicate of the motion by presenting competent and admissible

material evidence by:

(1) pointing to evidence overlooked or

ignored by the moving party that establishes

a material factual dispute, (2) by

rehabilitating the evidence attacked in the

moving party’s papers, (3) by producing

additional evidence showing the existence

of a genuine issue for trial, or (4)

submitting an affidavit explaining why

further discovery is necessary as provided

for in Tenn.R.Civ.P., Rule 56.06. 

Robinson, 952 S.W.2d at 426 n.4; McCarley, 948 S.W.2d at 479;

Byrd, 847 S.W.2d at 215 n.6. In addition, the evidence must be

viewed by the court in the light most favorable to the nonmoving

party, and all inferences must be drawn in favor of the nonmoving

party. Byrd, 847 S.W.2d at 210-211. Summary judgment should be

granted only when the facts and conclusions permit a reasonable

person to reach only one ultimate conclusion -- that the moving

party is entitled to a judgment as a matter of law. Robinson,

952 S.W.2d at 426; Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.

1995).

 

III.

The transcript of the parole hearing -- a supporting

document to the defendant’s motion for summary judgment --

negates the plaintiff’s claim that the Board acted illegally,

fraudulently, arbitrarily, and capriciously. The transcript

establishes that the plaintiff was afforded an opportunity to

present evidence at the parole hearing. Further, the transcript
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The plaintiff claims that the Facts of Offense Report states that he used

a weapon in the commission of the crime.

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The trial court, in denying plaintiff’s motion for a new hearing, found

that the Board made its decision without being aware of any problems with the

Facts of Offense Report or invalid convictions.

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reveals that the black and white photographs were not critical to

the Board’s decision to deny parole. The one piece of

information cited by the plaintiff as being prejudicial to him2

was specifically rejected by the hearing officer, and there is no

evidence in the transcript that the Board relied on invalid

convictions in making its decision to deny parole.3 It is clear

from the transcript that the decision by the Board to deny parole

was based on the seriousness of the offense and the plaintiff’s

psychological report.

The record establishes that the defendant has satisfied

his burden of affirmatively negating essential elements of the

plaintiff’s claims, thus triggering the plaintiff’s burden to

produce countervailing evidence. See McCarley, 948 S.W.2d at

479.

In reviewing the plaintiff’s response to the motion for

summary judgment, we note that he failed to carry his burden

under Byrd. He relied solely upon his pleadings and did not

point to any evidence to establish that there are material

factual disputes; nor has the plaintiff rehabilitated the facts

attacked by the defendant or provided additional evidence

establishing the existence of genuine issues for trial. In

short, the plaintiff has failed to carry his burden under Rule

56.06, Tenn.R.Civ.P.
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IV.

For the foregoing reasons, we conclude that the

defendant has demonstrated that there are no genuine issues of

material fact, and, further, that he is entitled to a judgment as

a matter of law. Accordingly, the judgment of the trial court is

affirmed. This case is remanded to the court below for the

collection of costs assessed there. The costs of this appeal are

taxed against the appellant.

 _________________________

 Charles D. Susano, Jr., J.

CONCUR:

________________________

Houston M. Goddard, P.J.

________________________

Herschel P. Franks, J.