                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON

                                                                  FILED
LAMAR FLETCHER,                    )
                                   )                                 June 22, 1999
      Claimant/Appellant           )      Claims Commission No. 98000308
                                   )                               Cecil Crowson, Jr.
v.                                 )                              Appellate Court Clerk
                                   )      Appeal No. 02A01-9803-BC-00076
STATE OF TENNESSEE,                )
                                   )
       Respondent/Appellee.        )

               APPEAL FROM THE TENNESSEE CLAIMS COMMISSION
                            WESTERN DIVISION


             THE HONORABLE MARTHA B. BRASFIELD, COMMISSIONER



For the Claimant/Appellant:        For the Respondent/Appellee:

Lamar Fletcher, Pro Se             John Knox Walkup
Henning, Tennessee                 Michael E. Moore
                                   Elena J. Xoinis
                                   Nashville, Tennessee



                                   AFFIRMED



                                   HOLLY KIRBY LILLARD, J.


CONCUR:

W. FRANK CRAWFORD, P.J., W.J.

ALAN E. HIGHERS, J.
                                             OPINION

       This is an action for negligence. The claimant, an indigent inmate, filed suit against the State

of Tennessee, alleging that the Tennessee Department of Corrections negligently withdrew funds

from his inmate trust fund. The Tennessee Claims Commission granted summary judgment to the

State of Tennessee. We affirm.

       Inmate Lamar Fletcher (“Fletcher”), was housed at the State of Tennessee Cold Creek

Correctional Facility at the time of the events at issue. On July 25, 1997, Fletcher received notice

that on July 15, 1997 the Tennessee Department of Corrections had deducted $44.90 from his inmate

trust fund account. When Fletcher inquired about the deduction, the accountant told him that the

Chancery Court Clerk of Davidson County, Tennessee had issued a distress warrant for unpaid

litigation taxes for the case of Fletcher v. Board of Professional Responsibility, No. 95-3637-III.1

       Several days later, Fletcher filed a claim with the Tennessee Claims Commission

(“Commission”) against the State of Tennessee (“State”), seeking damages of $294.2 He alleged that

Department of Corrections employees were negligent in performing their duties because Fletcher,

as an indigent, was not responsible for litigation taxes, and, in addition, that he should have been

given advance notice of the withdrawal. The Claims Commission denied Fletcher’s claim. Fletcher

subsequently appealed the Commission’s denial of his claim. The State responded with a motion

to dismiss or for summary judgment for failure to state a claim on which relief can be granted. In

the State’s memorandum of law filed in support of its motion to dismiss, it argued that Fletcher

failed to state a claim for negligence, which is required to prevail on a prisoner property loss claim.

On March 12, 1998, the Commission granted summary judgment to the State and dismissed the

action. The Commission found that Fletcher’s indigence relieved him of court costs only and not

the collection of the State litigation tax, which is a state tax rather than a court cost. The

Commission determined that the Clerk and Master of the Chancery Court of Davidson County had

the authority as the “local collector” to issue the distress warrant pursuant to Tennessee Code

Annotated § 67-4-215 because of Fletcher’s failure to pay the litigation tax. The Sheriff then had


       1
               Fletcher originally owed litigation taxes of $23.75. The court clerk then assessed
a penalty of $5.94, interest of $3.21, and sheriff’s fee of $12.90, bringing the total up to $44.90.

       2
              Fletcher sought damages of $294 based on his assertion that the missing funds
caused him “not to be able to pay bills and make necessary purchases.”
a duty to execute on Fletcher’s trust account under Tennessee Code Annotated § 67-4-215(d). The

Commissioner found that the Department of Corrections had a duty to satisfy the distress warrant

and withdraw the money upon receipt. The Commissioner found no negligence on the part of the

Department of Corrections. Several days later, the Commission granted Fletcher’s motion to transfer

the case from the small claims docket to the regular docket pursuant to Tennessee Code Annotated

§ 9-8-403.3 Fletcher now appeals the Commission’s grant of summary judgment in favor of the

State.

         On appeal, Fletcher contends that he is not liable for litigation taxes assessed in the prior

action, because he proceeded in forma pauperis in that action. Second, Fletcher complains that the

prison officials did not have the authority to withdraw the funds from his trust fund account. Finally,

Fletcher asserts that he was not provided adequate notice pursuant to Tennessee Code Annotated §

67-4-215.

         A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter

of law. See Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists. See Byrd v. Hall, 847 S.W.2d 208, 211

(Tenn. 1993). On a motion for summary judgment, the court must take the strongest legitimate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. See id. at 210-11. Summary judgment is only

appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only

one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of

law are involved, there is no presumption of correctness regarding a trial court's grant of summary

judgment. See id. Therefore, our review of the trial court’s grant of summary judgment is de novo

on the record before this Court. See id.

         The first issue on appeal is whether an indigent party is liable for litigation taxes levied under

Tennessee Code Annotated § 67-4-602. Fletcher focuses on Tennessee Code Annotated § 20-12-


         3
               Tennessee Code Annotated § 9-8-403 provides that the Claims Commission shall
maintain two separate dockets, a small claims docket and a regular docket similar to those
maintained by courts of record. “[D]ecisions . . . regarding claims on the regular docket may be
appealed to the Tennessee court of appeals pursuant to the same rules of appellate procedure
which govern interlocutory appeals and appeals from final judgments in trial court civil actions.”
Tenn. Code Ann. § 9-8-403(1) (Supp. 1998).

                                                     2
127(a), which provides that when a claimant files an oath of poverty, “[a]ny civil action may be

commenced by a resident of this state without giving security as required by law for costs and

without the payment of litigation taxes due . . . .” Tenn. Code Ann. § 20-12-127(a) (Supp. 1997).

The State maintains that Fletcher ignores Tennessee Code Annotated § 20-12-127(b), which states,

“The filing of a civil action without paying the costs or taxes or giving security for the costs or taxes

does not relieve the person filing the action from responsibility for the costs or taxes but suspends

their collection until taxed by the court.” Tenn. Code Ann. § 20-12-127(b) (Supp. 1997).

        In Roberts v. Blount Memorial Hospital, 963 S.W.2d 744 (Tenn. App. 1997), the Tennessee

Court of Appeals considered an argument similar to that put forth by Fletcher in this case. In

Roberts, the appellants argued that the trial court should have relieved them of court costs because

they were indigent. The Court responded,

        The appellants have cited us to no authority requiring the court to relieve a party
        from court costs because of indigency. While it is elementary that an indigent person
        may proceed without bond upon a finding by the court that the person is indigent,
        this is not to say that such an indigent person is relieved of his or her obligations to
        pay costs incurred in the prosecution of an action.

Id. at 749. Although the state litigation tax is not a court cost, the reasoning in Roberts is persuasive

in this case. The filing of a pauper’s oath under Tennessee Code Annotated § 20-12-127 merely

delays payment of the costs and litigation taxes assessed to a plaintiff. Fletcher was allowed to

commence his prior action without payment of the litigation tax because of his indigence, under

Tennessee Code Annotated § 20-12-127(a). Fletcher is not, however, permanently relieved of his

obligation to pay the litigation tax. The Claims Commission did not err in its determination that

Fletcher owed the litigation tax.

        Next we must consider whether the Tennessee Department of Corrections had the authority

to withdraw Fletcher’s funds from his inmate trust fund account in order to pay the distress warrant.

The Commission found that the distress warrant was validly issued under Tennessee Code Annotated

§ 67-4-215. Therefore, the sheriff had a duty to execute on Fletcher’s trust account under Tennessee

Code Annotated § 67-4-215(d).4 The Commission also determined that the Department of


        4
                Section 67-4-215(d) reads in full:

               (d) If any sheriff willfully fails, refuses or neglects to execute any distress
        warrant directed to the sheriff within the time provided in this part, the official bond
        of such sheriff shall be liable for the tax, penalty, interest, and cost due by the
        taxpayer, and, on complaint of any proper officer, this penalty shall be enforced by

                                                   3
Corrections was under a duty to satisfy the distress warrant and withdraw the money upon receipt

of the warrant.

        Weddle v. Campbell, No. 02A01-9503-CH-00052, 1995 WL 464216 (Tenn. App. Aug. 3,

1995), addressed the authority of the Department of Corrections to withdraw funds for litigation

taxes from an inmate’s trust fund account. The plaintiffs in Weddle were assessed court costs,

litigation tax, criminal compensation fund tax, and fines upon conviction. The plaintiffs’ wages

were placed in inmate trust fund accounts, and the prison officials deducted up to fifty percent of the

wages in satisfaction of the costs, fines, and taxes. The plaintiffs did not contest the authority of the

prison officials to deduct the criminal compensation fund tax or litigation tax, but complained that

the withdrawal of the court costs was not authorized and that the plaintiffs were not liable for the

costs because they were indigent. The court found no statutory authority that would allow “earnings

to be placed in trust and subjected to payment of costs. By contrast, T.C.A. § 67-4-603 provides for

the collection by the commissioner of correction of the litigation privilege tax during the prisoner’s

period of confinement.” Id. at **3.

        Tennessee Code Annotated § 67-4-603 concerns the collection of privilege taxes, including

the litigation privilege tax. It instructs that, after the clerk of the court certifies to the commissioner

of correction that the prisoner has not paid the entire tax due, “[t]he commissioner . . . shall then

cause any amount owing to be collected from the inmate during the inmate’s period of confinement.”

Tenn. Code Ann. § 67-4-603(b)(1).5 Based on the plain language of the statute, as well as the


        the attorney general and reporter in any manner permitted by law.

Tenn. Code Ann. § 67-4-215(d) (1998).
        5
                  The full language of Tennessee Code Annotated § 67-4-603(b)(1) reads:

                (b)(1) When any defendant in a criminal action is liable to pay the applicable
        privilege tax, the clerk of the court shall certify to the commissioner of correction,
        the county sheriff or the board of workhouse commissioners, as applicable, whether
        payment of the tax has been made. Such certification shall be in such form as the
        commissioner, the county sheriff or the board of workhouse commissioners, as
        applicable, shall direct. The commissioner, the county sheriff, or the board of
        workhouse commissioners, as applicable, shall then cause any amount owing to be
        collected from the inmate during the inmate's period of confinement by the
        department or at the county jail or county workhouse, as applicable. The
        commissioner, the county sheriff and the board shall retain all records relating to
        amounts collected for the payment of the privilege tax on litigation for a period of
        four (4) years. Such records may be examined by the commissioner of revenue or
        the commissioner's delegate, pursuant to chapter 1, part 14 of this title.

Tenn. Code Ann. § 67-4-603(b)(1) (1998).

                                                    4
reasoning in Weddle, we conclude that the Department of Corrections had the authority to deduct

the amount owed for litigation taxes from Fletcher’s inmate trust fund upon receipt of the distress

warrant.

       We next consider Fletcher’s contention that the Department of Corrections failed to give him

ten days’ notice before withdrawing money from his account, as required by Tennessee Code

Annotated § 67-4-215. This code section reads, “(a) A local collector has the power to issue a

distress warrant for taxes collectible by the local collector. (b) Prior to the issuance of a distress

warrant, the local collector shall give not less than ten (10) days’ written notice to the taxpayer . .

. .” Tenn. Code Ann. § 67-4-215(a)-(b) (1998). Under this statute, the entity that issues the distress

warrant is the “local collector.” Therefore, the “local collector” in this case was the Clerk and

Master of Davidson County Chancery Court, rather than the Department of Corrections. The Clerk

and Master was required to give Fletcher notice prior to the issuance of the distress warrant, rather

than the Department of Corrections employees.

       The record in this case does not reflect whether the Clerk and Master of Chancery Court of

Davidson County sent Fletcher notice that a distress warrant would be issued. Unless the appellant

provides us with a record that includes the necessary information, we must assume that the

proceedings below support the decision of the trial court. See Coakley v. Daniels, 840 S.W.2d 367,

370 (Tenn. App. 1992). Therefore, we find this issue without merit.

       In sum, we find that Fletcher was liable for the litigation taxes despite his indigent status.

The Department of Corrections properly exercised its authority to withdraw the funds from

Fletcher’s inmate trust fund account, pursuant to Tennessee Code Annotated § 67-4-603. Finally,

the Department of Corrections was not negligent in failing to give Fletcher notice because Fletcher

cites no authority requiring the Department to give such notice. The Department of Corrections did

not breach any duty it owed to Fletcher in withdrawing the funds from his inmate trust fund account.

Therefore, the grant of summary judgment in favor of the State by the Claims Commissioner is

affirmed.

        The decision of the Claims Commissioner is affirmed. Costs are taxed to Appellant, for

which execution may issue if necessary.




                                                  5
                           HOLLY KIRBY LILLARD, J.

CONCUR:



W. FRANK CRAWFORD, P. J., W.S.



ALAN E. HIGHERS, J.




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