                   IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                        Submitted on briefs, August 21, 2009

                JEROME WILLIAMS v. GEORGE LITTLE, et al.

                Direct Appeal from the Chancery Court for Davidson County
                  No. 08-394-I    Hon. Claudia C. Bonnyman, Chancellor


                                 _________________________

                   No. M2008-02105-COA-R3-CV - Filed October 20, 2009
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Petitioner sought to withdraw a waiver he had signed as a prisoner. On a summary judgment motion
by defendants, the Trial Court held that if the waiver was withdrawn, petitioner would serve more
time and granted the motion. On appeal, we affirm the grant of summary judgment.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.


Jerome Williams, Clifton, Tennessee, pro se.

Arthur Crownover, Nashville, Tennessee, for appellee.




                                            OPINION


                Petitioner, Jerome Williams, a prisoner acting pro se, petitioned for a “Declaratory
Order”, asking that his sentence be recalculated to reflect the proper sentence reduction credits.
Petitioner stated that he had been in custody since March 1986, and that the crimes he committed
were before the sentence reform act of 1989. Petitioner stated that he had signed a waiver which
only allowed him to receive a minimum amount of sentence reduction credits, and that he wanted
to retract the waiver because he was not advised that he was entitled to more credit.

                Petitioner attached a copy of a letter he received from TDOC counsel, which stated
that his petition was denied because he was already earning the proper credits. He also attached
various TDOC documents regarding the waivers, and the sentencing guidelines.

               The Trial Court entered an Order on February 28, 2008, stating that the petitioner had
not complied with the filing of his filing fee or affidavit of indigency, had not filed the required
inmate affidavit, nor had he paid his litigation tax, and had not issued a proper summons.

                The Court stated that the petitioner needed to do so immediately in order to avoid
dismissal of the action. The Court then entered an Order of Dismissal on April 13, 2008, stating that
petitioner had not complied with the requirements set forth in the prior Order.

                Petitioner then filed an Inmate Affidavit, along with a copy of his trust account
statement, and thereafter the Court entered an Order Reopening Case and Requiring Partial Payment
of Initial Filing Fee. The Order states that petitioner had substantially complied with the filing
requirements, and needed only to pay $8.68 within 30 days to maintain the action.

                Defendant then filed a Motion for Summary Judgment on July 1, 2008, stating that
petitioner’s sentence had been correctly calculated, and that he was receiving the proper sentence
reduction credits. Defendant attached the Affidavit of Candace Whisman, TDOC Director of
Sentence Management Services, to that effect. Defendant argued that there were no genuine issues
of material fact, and the Affidavit of Candace Whisman explains the calculation of petitioner’s
remaining sentence in detail, and stated that he has received the maximum allowed sentence
reduction credits. Whisman also stated that if petitioner rescinded his waiver, his sentence would
actually increase. Petitioner’s sentencing documents were attached to the Motion.

                 The Trial Court granted the Motion for Summary Judgment, stating that petitioner
had failed to file any response to the Motion for Summary Judgment, and there was no disputed issue
of fact.

             Petitioner filed notice of appeal, which stated: “Did the Trial Court err in granting
summary judgment to defendant on petitioner’s claim that his remaining sentence was incorrectly
calculated”.

              Petitioner argues the Trial Court erred in granting summary judgment because his
sentence was miscalculated.

               It is well-settled in Tennessee that:

               the party seeking summary judgment must carry the burden of persuading the court
               that no genuine and material factual issues exist and that it is, therefore, entitled to


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                judgment as a matter of law. Once it is shown by the moving party that there is no
                genuine issue of material fact, the nonmoving party must then demonstrate, by
                affidavits or discovery materials, that there is a genuine, material fact dispute to
                warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot
                simply rely upon his pleadings but must set forth specific facts showing that there is
                a genuine issue of material fact for trial.

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

                The Tennessee Rules of Civil Procedure require: “Any party opposing the motion for
summary judgment must . . . serve and file a response to each fact set forth by the movant . . .. Each
disputed fact must be supported by specific citation to the record.” Tenn. R. Civ. P. 56.03. “[A]n
adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but
his or her response, by affidavits or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If the adverse party does not so respond, summary
judgment, if appropriate, shall be entered against the adverse party.” Tenn. R. Civ. P. 56.06.

               In this case, Ms. Whisman’s affidavit showed that petitioner was receiving the
maximum credits that he could, and gave a detailed calculation of his release date. The affidavit
further unequivocally stated hat if he were allowed to rescind the waiver, as he sought, his sentence
would actually increase. Petitioner did not file any affidavit nor documentation of any kind to
demonstrate otherwise. Thus, as the Trial Court found, defendant clearly showed that there was no
genuine issue of material fact, and that defendant was entitled to summary judgment as a matter of
law.

              The Trial Court did note, however, that defendant failed to file any supporting
memorandum or statement of facts with citations to the record, but found the affidavit was sufficient
and thus apparently waived those requirements from Tenn. R. Civ. P. 56.03.

                 We have previously stated, “we agree with counsel for the Defendants that the
provision of Rule 56.03 of the Tennessee Rules of Civil Procedure, directing a simple concise
statement of the material facts to accompany any motion for summary judgment, is for the benefit
of the trial court, and could be, as it was in this case, waived. Moreover, even if we were to find that
this issue has merit, it would require remand to the Trial Court where another motion for summary
judgment could be made, meeting the omitted requirement of Rule 56.03.” See, Butler v. Diversified
Energy, Inc., 1999 WL 76102 (Tenn. Ct. App. Jan. 28, 1999).

                In sum, the Trial Court held that the affidavit was sufficient to set forth the necessary
material facts, and properly waived the filing of a formal statement pursuant to Rule 56.03. The
affidavit demonstrated there was no genuine issue of material fact, and the burden then shifted to
petitioner to show that there was a genuine issue, and since petitioner filed no response, summary
judgment was appropriately granted.



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            The Judgment of the Trial Court is affirmed and the cost assessed to Jerome
Williams.




                                              _________________________
                                              HERSCHEL PICKENS FRANKS, P.J.




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