# FILED April 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF A PPEALS OF TENN ESSEE

AT NASHVILLE

RICHARD L . NORTHCOTT, ) ) Petitioner/Appellant, ) ) Appeal No. ) 01-A-01-9707-CH-00355 VS. ) ) Davidson Chancery ) No. 96-3021-III TENNESSEE DEPARTMENT OF ) CORRECTION, ET AL., ) ) Respondent/Appellee. )
APPEALED FROM THE CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR
RICHARD L. NORTHCOTT, #93811 Turney Center Route One Only, Tennessee 37140-9709 Pro Se/Petitioner/Appellant JOHN KNOX WALKUP Attorney General and Repor ter JOHN R. MILES Assistant Attorney Gener al 425 5th Avenue North Nashville, Tennessee 37243-0488 Attorney for Respondent/Appell ee

AFFIRMED IN PART; REV ERSED IN PA RT;

AND REMANDED

BEN H. CANTRELL, JUDGE
CONCUR: TODD, P.J., M.S. KOCH, J. 

## O P I N I O N- 2 - An inmate in the custody of the D epa rtment of Correction filed a decla ratoryjudgment action which alleged that the Department had failed to a war d him sentence redu ction credits to whi ch he was entitled. The Depa rtment did not respond in the allotted time, and the tr ial court granted the in mate a default judgment. The Department subsequently filed a motion to set aside the default, coupled with a motion for a sum mary j udgment against the inmate. The trial court granted both motions. We affirm the trial court’s acti on in setting aside the default, but we reverse the summary judgment.

I. The Facts

On July16, 1981, Richard L. Northc ott was convicted of cr

iminal sexual conduct in the first d egree, and was giv en a determinate life sentence. The act for which he was convicted occ urred in the summer of 19 78. He cla ims that after he began his s entence , he was informed that he was not entitled to any sentence reduction credits.

In 1985, t he Le gislature changed the law pertaining to sentence reduction credits. Inmates sentenced under the old law, including the petitioner, were told that they could begin to earn se ntence credits under the new provisions if they signed a waiver of thei r rig ht to serve their sentenc es under the law in effect at the time they were sentenced. Mr. Northcott, wh o felt he had nothing to lose, sig ned the waiver on March 1, 1986, and began receiving sentence r

eduction credits at the

rate prescribed by law

.

Mr. Northcott subsequently came to believe that he had been misinformed as to his right to accumula te s entence credits before he sig ned the waiver, and that he was therefore entitled to have his sentence reduced by a greater number of days than the Department was willing to grant. He attempted to correct the- 3 -

purported error through a long course ofadministrative appeals, which concluded on July31, 1996 with a fina l denial ofhis contentions by the l egal assistant for the Departmentof Correction. Having thus exhausted his adminis trat ive re medies, Mr. Northcott filed a Petition forDeclarat ory Judgme nt under the Unif orm Admi nistrati ve ProceduresAct (UAPA) in the Chancery Court of Davidson County on Sept ember 27, 1996.

The petitioner noted that the law in effect when he committedhis offense p e rmitted prisoners to earn Good Time, H onor Time and Incentive Time Cr edits to reduce their sentences. Prior to Mr. Northcott’s conviction, these forms of sentence reduction creditswere replaced by Good Conduct Credits and Prisoner Performance Sentence Credits. Mr. Northcott asserted that under former Tenn. Code Ann. § 39-1- 105 (repealed 1989), and under the pr inciples enunciated in Weaver v. Graham , 450 U.S. 24 (1981), a n offender is entitled to serve his sentence according to the law in effect at the time of his offense, or at the time of sentencing, whichever is more lenient.

After

the petition was

filed, there followed a long period, discussed in the next section of this opinion, duri ng which the petitioner filed appropriate motions and the State failed to respond. The case finally came for hearing before the trial court, which on July 8, 19 97 dismi ssed Mr. Northcott’s petition and granted summary judgmentto the State. In its summary judgment order, the court cited the grounds of lack of jurisdiction and r es judicata. This appeal follow ed.

II. The Default

As we stated above, Mr.Northcott filed his Petiti on for Declaratory Judgment on September 27, 1996. On November 14 counsel for the State filed a motion fora thirty-day ex tension of time in which to fil e a response toMr. Northcott’s- 4 -

petition. On December 6 the trial c ourt granted the motion, and ordered the respondentto file a response to the petition on or before Monday, January 6, 1997. No response h aving been received by that date, the petitioner filed a Motion for Default Judgment on Janu ary 24, 1997. The State fa iled to respo nd to the motion, and the court accordingly filed an order on March 14, 1997 granting the petitioner a default judgment, and ordering hi m to submit a final order stating the relief to which he was entitled.

Shortly thereafte r the respondent finally s wung into action, fili ng a motio n on March 20, 1997 to set aside the default. Attached to the motion was an Aff idavit of Counsel, in which the affiant, a priv ate attorney who had prev iously been employed as an Assistant Attorney General, stated that he had enter ed into a contract with the State of Tennessee to handle a number of cases in various stages of litigation, and that he became responsible for the pr esent case aswell as

a large number of other cases on February 12, 1997. Nothing in the affidavit or els ewhere in the record addresses the cond uct of pr ior cou nsel, or

the reas

ons fo r the St ate’s failure to respond appropriately to the peti tioner’s motions or the or ders of the court prior to February 12.

The affiant stated that he received about one hundred case files under the contract on February 27 , and that att ached to each file was a transfer memorandum. On the basis of the mem orandum attached to this case, he claimed that he was led to believ e that prior counsel had made some s ort of substa ntive defense in the matter. An unauthenticated copy of this terse and rather unrev ealing memorandum was attached as an exhibit to the petitioner’s brief on appeal.

When he opened the file at a later time, the affiant could not find the responsi ve pleading that should have been fil ed by January 6. A phone call t o the Clerk and Master’s office reveal ed that a Motion for Default Judgment had been made- 5 -

and granted in this case, a nd shortly thereafter counsel filed his motionto set aside the default.

On May 14, 1997, the trial court granted the State’s motion to set aside the default judgment, holding that it had been improper to grant thedefault in the first i nstance. The cour

t refere nced Rul e 55.04 o f the Tenne

ssee Rul es of Civi l Procedure, wh ich states that “[n]o judgment by default shall be entered agains t the State of Tennessee or any officer of or agency thereof unles s the claimant establishes his claim or right to relief by evidence satisfactory to the court.”

Since the default judgment was appar ently ba sed sole ly on the
r espondent’ s failure to defend, and contained no findings on the merits pursuant to Rule 55.04, we believ

e the court ruled correctly in setting the j udgment aside.

III. The Trial Court’s Jurisdiction
Having prevailed on its argument that it w as entitled to be heard, despite its delay in responding to the petit ioner’s contentions, the r espondent argued both at trial and on appeal that the chancery court had nojurisdiction over the case, because the petition had not been filed in a timely way.

The State relied upon those prov isions of the Uniform Adm inis trative ProceduresAct which set forth the ti me frame within which a petition for declaratory judgment must be filed. Tenn. Code Ann. § 4-5-322(b)(1) reads in pertinent part:

Proceedings for rev iew are instituted by filing a petition for review in the chancery court o f Davidson County, unles s a n other court is specified by s

tatute. Such petition shall be filed within sixty

(60) days after the

entry of the agency’s final decision thereon. . . . Copi es of the petition shall be served upon the agency and all partie s o f record, including the attorney general and reporter, i n accordance with the provisions

of the Tennessee Rules of Civil Procedure pertaining to servi ce of process.- 6 -

Our courts have found that the sixty-day time limit may not be extended, and that it is both mandatory and jurisdi ctional. Bishop v. Department of Correction , 896 S.W.2d 557 (Tenn. App. 1994). Wheeler v. City of Memphis , 685 S.W .2d 4 (Te nn. App. 1984).

The State acknowledges that the petition was filed less than six ty days afterthe letter of July 31, 1996 denying Mr. Northcott’s request for a declaratory order, but it claims that

he did not meet the jurisdictional requirements of Tenn. Code Ann. § 4-5-322(b) because he did not file a summons with his petition. The recor d shows that when notified of

the deficiency by the Clerk and Master, the petitioner promptly sent a summons for service on the State’s representatives.

The State relies upon the fact that at the time the petition was filed, Rule 3 of the T ennesse e Rules of Civil Proce dure stat ed that “[ a]ll civi l actions a re commenced by filing a complaint and summons with the clerk of the court.” The rule has since b een amended to require only the filing of a complaint in or der to commence an action. As the State pointed out, t his co urt recently upheld a tr ial court’s dismissal of a Petition for Declaratory Judgment in another case involvi ng the provisions

of Tenn. Code Ann. § 4-5-322(b), beca use the petitioner failed to file a summons within the allotted time. HRA Inc. v. Tennessee Dept. of Commerce , 914 S.W.2d 512 (1995).

However in the case of Jaco v. Department of H ealth , 950 S.W.2d 350 (Tenn. 1997), our Supreme Court has explicitly reversed our holding in the HRA case. The Court noted that the plain ter ms of the statute do not require that a summons be filed in order to obtain judici al review, but only that cop ies of th e petition be served. The Court held that a petition for judicial review under the UAPA stands on a different footing than an original complaint against the State, because it is a continuing pro ce eding, in which the parties have been determined and are alr eady of record.- 7 -

Therefore, the ser

vice of a summons would serve no useful purpose that could not be accomplished by the statutorily required service of the petition, a nd it is not required in order to comm ence the judicia l proceeding.

In a footnote, the court observed that this rationale would not app ly if a party or agency that was

not a party to the

administrative proceedi ngs were made a party to the proceedings for judici al review. But of course that is not the case before us.
The Supreme Court issuedits opinion in the Jaco case on August 25, 1997, subsequent to the Chancery Court’s order in the pr esent case. The question of whether changes i n decisional law are to be applied prospectivel y only, or retroactivelyas well, has been considered many times by our courts. While the results have vari ed, the principles have r emained consistent.

The question received a thorough discussion in Cumberland Capital Corp. v. Patty

, 556 S.W.2d 516, 538 (Opinion on Petiti on to Rehear) (Tenn. 1977). The Court found it undoubtedly had the power to apply its d ecisions retrospectively to cases still before t he courts , where suc h an appl ication wo uld serve the interests of justice. The overridi ng consideration in such a situatio n is fundamental fairness. See also Marshall v. Marshall, 670 S.W.2d 213 ( Tenn. 19 84); Kee v. Shelter Insurance , 852 S.W.2d 226 (Tenn. 1993). Another important consi deration is whether retroact ive applic

ation of a new procedural rule w

ill enhance theintegrity and rel iability of the fact-finding process at trial. Tennessee v. Robbins, 519 S.W.2d 799 (Tenn. 1975).

In light of the procedural hi story of this case, w e believe that fundamental fairness requires that Mr. No rthcott be heard, and that his petition be considered timely in ac cordance with the Supreme C ourt’s holding in Jaco

.- 8 - IV. Res Judicata

The trial court stated that i t found additional grounds for dismissal i n the doctrine of res judicata. A simple defini tion of this term is that it is a "[r]ule that

a final judgmentrendered by a court of competent jurisdict ion on th e merits i s conclus ive as to the rights

of the parties and their priv ies, and, as to them, constitutes an absolute bar to a subsequent action inv olving the same claim, demand or cause of action. Black's Law Dictionary

1172 (5th ed. 1979), as quoted i n Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446 (Te nn. 1995).

The record reveals that on August 2, 1 995, the petitioner filed a complaintcaptioned Northco tt v . Sundquist , USDC No. 95-CV-746, i n the United States District Court for the Middle District of Tennessee. The complaint included the same claims relating

to sentence reduction credits that are found in the petition before us. On January 29, 1996, Judge Nixon dismiss ed the complaint

for failure to state a claim upon which reli ef could be granted.

The record

in this case in cludes the petit ioner’ s compla int in federa l court, and the Memorandum and Order dismissi ng the complaint. A careful reading of these docume nt s reveals that the complai nt asserts federal constituti onal and statutory grounds for relief as w ell as state statutory grounds. The trial judge rejected the due process, ex post facto and equal protection arguments, and dismisse d th e petitioner’s claim under 42 U.S.C. § 1983 for monetary dama ges and a jury trial.

Though he discussed the State’s claims, and reje cted t he contention that all inmates whose cri mes were committed prior to November 1, 1989 we re entitled to have their sentence credits recalc ulated, the judge also w rote, “[i]n the current action Petitioner has

not demonstrated that he has exhausted his state court- 9 -

remedies. Because there has been no showing of exhaustion of state remedies, to the extent that this matter is a habeas corpus action, the Court dismisses it.”

We believe that on the basis of the above-q u oted language, we can fairly conclude t hat the fe deral court did not render a decision on the merits as t o whether Mr. Northcott is entitled by state law to have his own sentenc e credits recalculated in accordance withthe plea in his petition. We theref ore find the theory of res judicata inapplicable.

V. The Petitioner’s Contentions

We do not express an opinion as to whether Mr. Northcott is entitled to prevail on his arguments, or on the magnitude of the eff ect that a favorable decision would have on his sentence. We only believ e that he has demonstratedthat h e is enti tled to his day in court, an d that the cha ncery cour t is oblig ated to exami ne hi s claim on the merits.

There is a question of law as to whether Mr. Northcott was e ntitled to any form of sentence reduction credits under an y of the statutes in effect prior to the signing of the waiver on March 1, 1986. If th at qu e stion is decided in his fav or, the court must det ermin e how much of a sentence reduction the applicable statutes should have provided for him pr ior to March 1, 1986. The cour t may also have to consider the petitioner’s argument that the waiver he signed was invalid and should be set aside.

We note that if it becomes nece ssary to d ecide how ma ny ad ditional sentence reduction credits Mr. Northcott is entitled to, the court will have to make use of the expertise in sentenc e calculation possessed by the Department of Correction. But it will not be sufficient for the De partment to file affidavits contai ning the results- 10 -

of its calculations without providing the c alculations themselves. The case of Jones
v. Reynolds , App. No. 01A01-9510-CH-00484 (filed Nashville, Jul y 2, 1997) indicates the kind of information the Department must provid e in order for the petitioner to receive a meaningful rev iew.

VI.

The trial court’s action in setting aside its default judgmentis affirmed. In all other respects, the tria l cou rt is reversed. This cause is remanded to the Chancery Court of Davidson County for further proceedin gs consi stent with this opinion. Tax the costs on appeal to the appellee.

____________________________ BEN H. CANTRELL, JUDGE
CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_____________________________ WILLIAM C. KOCH, JR., JUDGE