### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Su bm it te d o n b rie fs , Aug us t 2 1, 2 00 9

JE ROME W IL LI AMS v. G EORG E LI TTL E, et a l.

Direc t Appeal from the Chancer y Court for Davidson Cou nty No. 08-394-I Hon. Claudi a C. Bonn ym an, Chan cellor

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No. M2008- 02105-COA-R 3-CV - F iled October 20, 2009

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Petitioner soug ht to withdraw a waiver he had signe d as a prisoner. On a summary judgme nt motion by defe ndants, the Tria l Court held that if the waiver was withdra wn, petitioner would ser

ve more time and g rante d the motion. On appea l, we af firm the g rant of summar

y judgme nt.

Tenn. R. App . P .3 Appeal as of Right; Judgme nt of th e Chancer y Court Affi rm ed.

H E R S C H E L P I C K E N S F R A N K S , P.J
., delivere d the opinion of the Court, in which C H A R L E S D. S U S A N O , J R ., J ., and D. M I C H A E L S W I N E Y , J ., joined.

J erome Wil liams, Cli fton, Tenne ssee, pro se

.

Arthur Crownove r, Na shville, Tennessee , for a ppellee.

OP INION

Petitioner, J erome Wil liams, a prisoner acting pro se , petitioned for a “De clar atory Orde r”, asking that his sentenc e be rec alculate d to ref lect the proper sentenc e reduc tion cr ed i t s

. Petiti o n er stated t hat he had been i n custody since March 1986, and that the crimes he commit ted

wer e befor e the sentenc e ref orm act of 1989. Petitioner st at ed that he had signe d a waiver which only allowed him to rec eive a minimum amount of sentence reduction cr edits, and that he w antedto retra ct the wa iver be cause he wa s not advised that he wa s entitled to more cr edit.

Petitioner attache d a copy of a letter he rec eived from TDOC counsel, which stated
t h at h i s petition was denied beca use he was alre ady ear

ning the proper cre dits. He also attache d various TDO C documents reg ardingthe waive rs, and the se ntencingg uidelines.

The Trial Court enter ed an Orde r on Fe bruar y 28, 2008, stating that the petitioner had
not complied with the fi l i n g of his filing fee or aff idavit of indige ncy , had not filed the require d inmate af fidavit, nor had he paid his liti g ation tax, and had not issued a prope r summons.

The Court stated that the petitioner neede d to do so immediately in order to avoid dismiss al of the action. The Court then enter ed an Orde r of Dismissal on April 13, 2008, stating that petitioner had not c omplied with the require ments set forth in the prior O rder

.

Petitioner then filed an I nmate Af fi davit, along with a copy of his trust acc ount statement, and there afte r the Court enter ed an Orde r Reopening Case and Requiring Partial Pay ment of I nitial Fili n g Fe e. The Orde r states that petitioner had substantially complied with the filing require ments, and nee ded only to pay $8.68 within 30 day s to maintain the action.

Def endant then filed a Motion for Summary J udg ment on J uly

1, 2008, stating that petitioner’s sentenc e had been corr ectly calc ulated, and that he was rec eiving the proper sentenc e reduc tion cre dits. Def

endant attach ed t h e Affidavit of Candac e Whis man, TDOC Direc tor of Sentence Manag ement Service s, to that eff ect. Def endant argued that there wer e no g enuine issues of materia l fac t, and the Affida vit of Candac e Whis man explains the calc ulation of petitioner’s

rema ining sentenc e in detail, and stated that he has rec eived the maxi mum all o wed sentenc e reduc tion credits. W hisman also stated t hat i f petitioner r escinde d his waiver, his sente nce w ould
actua lly incre ase. Petitioner’ s sentencingdocuments we re attached to the Motion.

The Trial Court g rante d the M otion for S u m m ar y J udg ment, stating that petitioner had failed to file any response to the Motion for Summary J udg ment, and there was no disputed issue of fa ct.

Petitioner filed notice of appea l, which stated: “Did th e Trial Court err in g ranting
summary judgme nt to defenda

nt on petitioner’s claim that his rema ining sentence was incorrec tly calc ulated”.

Petitioner argues the T ri al C o u rt err ed in g ranting summary judgme nt beca use his
sentenc e wa s miscalculated.

I t is well-settled in Tennesse e that:

the party seeking summary judgme nt must car ry the burden of persua ding the court that no g enuine a

nd materia l fac tual issues exis t and that it is, there fore
, entitled to

2judgme nt as a matter of l aw. Once it is shown by the moving pa

rty that there is no
g enuine iss u e o f materia l fac t, the nonmoving party must then demonstrate, by aff idavits or discovery materials, that there is a g enuine, materia l fac t dispute to

war rant a trial. I n this reg ard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleading s but must set forth specific fac ts showing that there is
a g enuine issue of

materia l fac t for trial.

Byrd v. H all , 847 S.W .2d 208 (Tenn. 1993) (citations omitted).

The Tenne ssee Rules of Civil Procedur e require : “Any party opposing the motion for
summary judgme nt must

. . . serve and file a response to eac h fac t set forth by the movant

. . .. Eac h disputed fac t must be supported by specific ci t at i o n t o the rec ord.” Tenn. R. Civ. P. 56.03. “[A]n adver se party may not r est upon the mere alleg ations or denials of the adver se party ' s pleading
, but his or her r esponse, by

aff idavits or as otherwise provided in this rule, must set forth specific fac ts showing t h at there is a g enuine issue for trial. I f the adver se party does not so respond, summary judgme nt, if appropr iate, shall be e ntere d ag ainst the adve rse pa rty .” Te nn. R. Civ. P . 56.06.

I n this case , Ms. Whis man’ s af fidavit showed that petitioner was rec eiving the

m ax i mum cre dits that he could, and g ave a detailed calc ulation of his rele ase date. Th e af fi d av i t further unequivoca lly stated hat if he wer e allowed to resc ind the waiver
, as he soug ht, his sentenc e would ac t u al l y i n crease. Petitioner did not file any aff idavit nor documentation of any kind to demonstrate otherwise. Thus, as the Trial Court found, defe ndant clea rly showed that there was no g enuine issue of materia l fac t, and that defe ndant was entitled to summary judgme nt as a matter of law.

The Trial Court did note, howeve r, that defe ndant failed t o file any supporting memorandum or statement of fac ts with citations to the rec ord, but found the aff idavit was sufficie nt and thus appa

rently waived those require ments from Tenn. R. Civ. P. 56.03.

We have previously s t at ed
, “we agree with counsel for the Def endants that the
p ro v i s i o n of Rule 56.03 of the Tenne ssee Rules of Civil Procedur e, direc ting a simple concise statement of the materia l fac ts to accompa ny any motion for summary

judgme nt, is for the bene fit of the trial court, and could be, as it was in this case , waived. Moreove r, even if we wer e to find that this issue has merit, it would require rema nd to the Trial Court wher e another motion for summary judgme nt could be made, meeting the omitted require ment of Rule 56.03.” See, Butler v. Diversified Energy, I nc. , 1999 WL76102 (Tenn. Ct. App. Jan. 28, 1999).

I n sum, the Trial Court held that the aff idavit was sufficie nt to set forth the nece ssary materia l fac ts, and p ro p er l y wa ived the filing of a formal statement pursuant to Rule 56.03. The aff idavit demonst rate d there was no g enuine issue of materia l fac t, and the burden then shifted to petitioner t o show that there was a g enuine issue, a nd since pe titioner filed no re sponse, s ummary judgme nt was appr opriately g rante d.

3The J udg ment of the T rial Court is aff irmed and the cost assessed to J erome Wil liams.

_________________________ H E R S C H E L P I C K E N S F R A N K S , P.J

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