                                                                                           08/30/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                            Assigned on Briefs April 3, 2018

 SHAWN R. BOUGH v. TENNESSEE DEPARTMENT OF CORRECTION
                          ET AL.

                 Appeal from the Chancery Court for Bledsoe County
                        No. 3326   Jeffrey F. Stewart, Judge
                      ___________________________________

                           No. E2017-02350-COA-R3-CV
                       ___________________________________

Shawn Bough filed a petition for common law writ of certiorari seeking review of his
prison disciplinary conviction. The petition named as respondents the Tennessee
Department of Correction and various individuals involved in petitioner’s conviction.
The trial court dismissed the petition on the ground that petitioner failed to timely comply
with the court’s order to submit a partial payment of the filing fee as required by Tenn.
Code Ann. § 41-21-807 (2014). Petitioner subsequently filed a “motion to reconsider,”
which the trial court denied. This appeal follows. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which RICHARD H.
DINKINS and KENNY W. ARMSTRONG, JJ., joined.

Shawn R. Bough, Pikeville, Tennessee, appellant, pro se.

Herbert H. Slatery III, Attorney General and Reporter, Andrée Blumstein, Solicitor
General, and Torrey E. Samson, Assistant Attorney General, Nashville, Tennessee, for
the appellees, Tennessee Department of Correction, Tony Parker, Darren Settles, Jerry
Johnson, and April Hubbard.

                                        OPINION

                                             I.

        Petitioner is an inmate in the custody of the Tennessee Department of Correction.
He is housed at the Bledsoe County Correctional Complex in Pikeville, Tennessee. He
filed a petition for common law writ of certiorari with the trial court seeking review of his
prison disciplinary conviction for “Intoxicants–Use, Sell, Exchange, Possession.”

        Petitioner also filed an affidavit of indigency. Respondents filed a motion asking
the court to order petitioner to comply with Tenn. Code Ann. § 41-21-807. This
provision of the Tennessee Prisoner Litigation Reform Act requires inmates proceeding
in forma pauperis to make an initial partial payment of the filing fee and then make
monthly payments until the filing fee is completely paid. Tenn. Code Ann. § 41-21-
807(b)(1)-(2). On September 11, 2017, the trial court entered an order directing
petitioner to pay an initial partial payment of $12.58 from his trust fund account within
thirty days or face dismissal without prejudice. Thus, the deadline to submit the partial
payment was October 11, 2017.

       The court received petitioner’s partial payment on October 13, 2017. On October
18, 2017, the clerk and master mailed the parties a letter stating that the court was
returning petitioner’s money order because it was received two days after the deadline.
The next day, on October 19, 2017, respondents filed a motion to dismiss. Petitioner did
not respond to the motion to dismiss. Nor did he contact the court to provide an
explanation for the delayed payment. Consequently, on October 30, 2017, the court
granted respondents’ motion and dismissed the petition.

       On November 13, 2017, petitioner filed a “Motion to Reconsider the Court’s
Order of Dismissal Ordered on October 30, 2017 and Filed by the Court Clerk on
October 30, 2017.”        The motion set forth facts, supported by accompanying
documentation, purporting to establish petitioner’s “good faith effort” to comply with the
court’s order. Specifically, petitioner alleged that he “submitted a Tennessee Department
of Correction Trust Fund Withdrawal Request on September 18, 2017, in the amount of
$12.58, to be mailed to: Greg Forgery, Clerk and Master, Bledsoe Chancery Court, 3150
Main Street, Suite 400, Pikeville, TN 37367.” Petitioner further alleged that on
September 26, 2017, prison officials mailed his check in petitioner’s self-prepared
envelope.

       According to petitioner, the U.S. Postal Service returned the check to the prison on
October 4, 2017, seven days prior to the court-ordered payment deadline. The envelope
was stamped with the following message: “Return to Sender, No Mail Receptacle,
Unable to Forward.” Petitioner alleged that because it takes approximately two weeks to
process a withdrawal from his inmate trust fund account, he contacted Nora Stone, an
unidentified third party, who agreed to send the partial payment to the court on his behalf.
This was the payment that the court received on October 13, 2017, two days after the
deadline.1

        1
         It appears that the only significant difference between petitioner’s first mailing and the mailing
sent by Ms. Stone is that Ms. Stone’s envelope included the appropriate P.O. box instead of the street
address of the courthouse.
                                                   -2-
       On December 12, 2017, the trial court denied petitioner’s motion, which it
construed as a motion to alter or amend a judgment pursuant to Tenn. R. Civ. P. 59.04.
Because petitioner had prematurely filed his notice of appeal on November 27, 2017, the
appellate court clerk’s office immediately entered the action upon receipt of the trial
court’s order.

                                             II.

Petitioner raises one issue on appeal:

              Whether the trial court abused its discretion by denying
              petitioner’s motion to reconsider the court’s dismissal of his
              petition for writ of certiorari.

                                             III.

       The trial court correctly converted petitioner’s “motion to reconsider,” which is
not recognized by Tennessee law, into a motion to alter or amend a judgment. We have
previously explained that when a litigant

              files a post-judgment motion called a “petition to rehear” or
              some other name not clearly referenced in Tenn. R. App. P.
              4(b) or Tenn. R. Civ. P. 59.01, the appellate courts must parse
              through the body of the petition or motion to determine
              whether it requests the sort of relief available through one of
              the four motions specifically listed in Tenn. R. App. P. 4(b) or
              Tenn. R. Civ. P. 59.01.

Hughes v. Tenn. Bd. of Parole, No. W2005-00838-COA-R3-CV, 2005 WL 3479632, at
*3 (Tenn. Ct. App., filed Dec. 20, 2005) (quoting Lee v. State Volunteer Mut. Ins. Co.,
No. E2002-03127-COA-R3-CV, 2005 WL 123492, at *7 (Tenn. Ct. App., filed Jan. 21,
2005)). In addition, courts must be mindful that

              [p]ro se litigants are not excused from complying with the
              same substantive and procedural requirements that other
              represented parties must adhere to. . . . [However, they are
              still] entitled to the same liberality of construction with regard
              to their pleadings that Tenn. R. Civ. P. 1, 8.05 & 8.06 afford
              any other litigant. . . . Courts should give effect to the
              substance, rather than the form or terminology, of a pro se
              litigant’s papers.

                                            -3-
Id. (internal citations and quotations omitted).

        In this case, petitioner filed his motion within thirty days of the trial court’s order,
as required by Tenn. R. Civ. P. 59.04. Although improperly titled, the motion also
clearly “requests a substantive alteration of the judgment.” See Lee, 2005 WL 123492, at
*8. Therefore, the trial court properly converted the motion into a Rule 59.04 motion to
alter or amend.

        “We review a trial court’s decision on whether to grant a Rule 59.04 motion to
alter or amend a judgment under an abuse of discretion standard.” Kirk v. Kirk, 447
S.W.3d 861, 870 (Tenn. Ct. App. 2013). “[A] trial court abuses its discretion when it:
appl[ies] an incorrect legal standard, reaches an illogical result, resolves the case on a
clearly erroneous assessment of the evidence, or relies on reasoning that causes an
injustice.” Newberry v. Newberry, No. E2017-00340-COA-R3-CV, 2018 WL 3058285,
at * 3 (Tenn. Ct. App., filed Jun. 20, 2018) (quoting Armbrister v. Armbrister, 414
S.W.3d 685, 693 (Tenn. 2013)).

                                              IV.

        Petitioner cites three cases to support his position that the trial court erred in
denying his motion to alter or amend its judgment: Wallace v. Tennessee Department of
Correction, No. M2005-01916-COA-R3-CV, 2006 WL 3246104 (Tenn. Ct. App., filed
Nov. 8, 2006), Freeman v. Department of Probation and Parole, No. M2002-00958-
COA-R3-CV, 2003 WL 1798080 (Tenn. Ct. App., filed Apr. 7, 2003), and Parra-Soto v.
Newble, No. M2003-00090-COA-R3-CV, 2003 WL 22794519 (Tenn. Ct. App., filed
Nov. 25, 2003). In each of these cases, a trial court dismissed an inmate’s case due to the
inmate’s failure to comply with a court order to pay a partial filing fee. Wallace, 2006
WL 3246104, at *3; Freeman, 2003 WL 1798080, at *2-3; Parra-Soto, 2003 WL
22794519, at *2. This Court affirmed each of those dismissals, noting that each inmate
had sufficient funds to pay the fee, was informed of the consequences for not paying the
fee, and failed to provide a justification for not paying the fee. Id. Although not
explicitly stated, petitioner seems to argue that his case is different because he alleged
facts in his Rule 59.04 motion that justify his delayed payment. As discussed below, that
would be a good argument if petitioner had explained the circumstances of his delayed
payment prior to the dismissal of his petition; however, this appeal comes to us on the
trial court’s denial of petitioner’s motion to alter or amend the judgment and our decision
must be governed by Tenn. R. Civ. P. 59.04.

        Because Tenn. R. Civ. P. 59.04 does not list specific grounds that justify a motion
to alter or amend a judgment,

              trial courts have considerable discretion in granting or
              denying the motion. As a general matter, there are four basic
                                         -4-
              grounds upon which a motion to alter or amend may be
              granted. First, the moving party may demonstrate that it is
              necessary to correct manifest errors of law or fact upon which
              the judgment is based. Second, the motion may be granted to
              permit the moving party to present newly discovered or
              previously unavailable evidence. Third, the motion may be
              justified by an intervening change in the controlling law.
              Fourth, the motion may be granted when necessary to prevent
              a manifest injustice.

Hughes, 2005 WL 3479632, at *4 (quoting Lee, 2005 WL 123492, at *7).

       When petitioner filed his motion to alter or amend, he alleged new facts and
presented new evidence to explain his late payment of the initial filing fee. Therefore,
the only potential ground for granting his motion is the ground relating to “newly
discovered or previously unavailable evidence.” Id. However, “[i]n order to sustain a
motion to alter or amend under Rule 59.04 based on newly discovered evidence, ‘it must
be shown that the new evidence was not known to the moving party prior to or during
trial and that it could not have been known to him through exercise of reasonable
diligence.’ ” Kirk, 447 S.W.3d at 869 (emphasis added) (quoting Seay v. City of
Knoxville, 654 S.W.2d 397, 399 (Tenn. Ct. App. 1983)).

        Although we commend petitioner for his efforts to comply with the court’s order,
it is clear that he had knowledge of all the facts alleged in his motion prior to the
dismissal of his petition on October 30, 2017. Specifically, on October 4, 2017,
petitioner received notice that his first payment had not been delivered. On October 18,
2017, the clerk and master notified petitioner that the court was rejecting the second sent
on his behalf by a friend. Finally, on October 19, 2017, respondents filed a motion to
dismiss and served it on petitioner. In each instance, petitioner failed to inform the court
of the reason for his delayed payment, despite his awareness of the aforementioned facts.
Because petitioner had knowledge of those facts prior to the dismissal of his petition, his
motion to alter or amend cannot be sustained on the ground of “newly discovered or
previously unavailable evidence.” See Kirk, 447 S.W.3d at 869. Accordingly, we
conclude that the trial court did not abuse its discretion by denying petitioner’s motion.

      We do not reach the question of whether the trial court erred in the first instance
by dismissing the petition. We also express no opinion on the merits of that petition.




                                           -5-
                                         V.

       The judgment of the trial court is affirmed. The case is remanded, according to
applicable law, for further proceedings consistent with this opinion.




                                                _______________________________
                                                CHARLES D. SUSANO, JR., JUDGE




                                         -6-
