             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                         FILED
                                                          April 29, 1998
RICHARD L. NORTHCOTT,                 )
                                      )                 Cecil W. Crowson
       Petitioner/Appellant,          )                Appellate Court Clerk
                                      )   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 CHANCERY COURT OF DAVIDSON 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 Reporter

JOHN R. MILES
Assistant Attorney General
425 5th Avenue North
Nashville, Tennessee 37243-0488
       Attorney for Respondent/Appellee




                   AFFIRMED IN PART; REVERSED IN PART;
                             AND REMANDED




                                          BEN H. CANTRELL, JUDGE


CONCUR:
TODD, P.J., M.S.
KOCH, J.

                                OPINION
              An inmate in the custody of the Department of Correction filed a

declaratory judgment action which alleged that the Department had failed to award

him sentence reduction credits to which he was entitled. The Department did not

respond in the allotted time, and the trial court granted the inmate a default judgment.

The Department subsequently filed a motion to set aside the default, coupled with a

motion for a summary judgment against the inmate. The trial court granted both

motions. We affirm the trial court’s action in setting aside the default, but we reverse

the summary judgment.



                                     I. The Facts



              On July 16, 1981, Richard L. Northcott was convicted of criminal sexual

conduct in the first degree, and was given a determinate life sentence. The act for

which he was convicted occurred in the summer of 1978. He claims that after he

began his sentence, he was informed that he was not entitled to any sentence

reduction credits.



              In 1985, the Legislature 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 sentence credits under the new provisions if they

signed a waiver of their right to serve their sentences under the law in effect at the

time they were sentenced. Mr. Northcott, who felt he had nothing to lose, signed the

waiver on March 1, 1986, and began receiving sentence reduction credits at the rate

prescribed by law.



              Mr. Northcott subsequently came to believe that he had been

misinformed as to his right to accumulate sentence credits before he signed 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


                                         -2-
purported error through a long course of administrative appeals, which concluded on

July 31, 1996 with a final denial of his contentions by the legal assistant for the

Department of Correction. Having thus exhausted his administrative remedies, Mr.

Northcott filed a Petition for Declaratory Judgment under the Uniform Administrative

Procedures Act (UAPA) in the Chancery Court of Davidson County on September 27,

1996.



              The petitioner noted that the law in effect when he committed his offense

permitted prisoners to earn Good Time, Honor Time and Incentive Time Credits to

reduce their sentences. Prior to Mr. Northcott’s conviction, these forms of sentence

reduction credits were 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 principles enunciated in Weaver v. Graham, 450

U.S. 24 (1981), an 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, during 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, 1997 dismissed Mr. Northcott’s petition and granted summary

judgment to the State. In its summary judgment order, the court cited the grounds of

lack of jurisdiction and res judicata. This appeal followed.



                                    II. The Default



              As we stated above, Mr. Northcott filed his Petition for Declaratory

Judgment on September 27, 1996. On November 14 counsel for the State filed a

motion for a thirty-day extension of time in which to file a response to Mr. Northcott’s


                                          -3-
petition.   On December 6 the trial court granted the motion, and ordered the

respondent to file a response to the petition on or before Monday, January 6, 1997.

No response having been received by that date, the petitioner filed a Motion for

Default Judgment on January 24, 1997. The State failed to respond to the motion,

and the court accordingly filed an order on March 14, 1997 granting the petitioner a

default judgment, and ordering him to submit a final order stating the relief to which

he was entitled.



               Shortly thereafter the respondent finally swung into action, filing a motion

on March 20, 1997 to set aside the default. Attached to the motion was an Affidavit

of Counsel, in which the affiant, a private attorney who had previously been employed

as an Assistant Attorney General, stated that he had entered 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 present case as well as a large number of other

cases on February 12, 1997. Nothing in the affidavit or elsewhere in the record

addresses the conduct of prior counsel, or the reasons for the State’s failure to

respond appropriately to the petitioner’s motions or the orders 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 attached to each file was a transfer

memorandum. On the basis of the memorandum attached to this case, he claimed

that he was led to believe that prior counsel had made some sort of substantive

defense in the matter. An unauthenticated copy of this terse and rather unrevealing

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

responsive pleading that should have been filed by January 6. A phone call to the

Clerk and Master’s office revealed that a Motion for Default Judgment had been made


                                           -4-
and granted in this case, and shortly thereafter counsel filed his motion to 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 the default in the first

instance.      The court referenced Rule 55.04 of the Tennessee Rules of Civil

Procedure, which states that “[n]o judgment by default shall be entered against the

State of Tennessee or any officer of or agency thereof unless the claimant establishes

his claim or right to relief by evidence satisfactory to the court.”



                Since the default judgment was apparently based solely on the

respondent’s failure to defend, and contained no findings on the merits pursuant to

Rule 55.04, we believe the court ruled correctly in setting the judgment aside.



                           III. The Trial Court’s Jurisdiction



                Having prevailed on its argument that it was entitled to be heard, despite

its delay in responding to the petitioner’s contentions, the respondent argued both at

trial and on appeal that the chancery court had no jurisdiction over the case, because

the petition had not been filed in a timely way.



                The State relied upon those provisions of the Uniform Administrative

Procedures Act which set forth the time 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 review are instituted by filing a petition for
                review in the chancery court of Davidson County, unless
                another court is specified by statute. Such petition shall be
                filed within sixty (60) days after the entry of the agency’s final
                decision thereon. . . . Copies of the petition shall be served
                upon the agency and all parties of record, including the
                attorney general and reporter, in accordance with the
                provisions of the Tennessee Rules of Civil Procedure
                pertaining to service of process.


                                              -5-
Our courts have found that the sixty-day time limit may not be extended, and that it

is both mandatory and jurisdictional. Bishop v. Department of Correction, 896 S.W.2d

557 (Tenn. App. 1994). Wheeler v. City of Memphis, 685 S.W.2d 4 (Tenn. App.

1984).



              The State acknowledges that the petition was filed less than sixty days

after the 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 record 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 Tennessee Rules of Civil Procedure stated that “[a]ll civil actions are

commenced by filing a complaint and summons with the clerk of the court.” The rule

has since been amended to require only the filing of a complaint in order to

commence an action. As the State pointed out, this court recently upheld a trial

court’s dismissal of a Petition for Declaratory Judgment in another case involving the

provisions of Tenn. Code Ann. § 4-5-322(b), because 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 Health, 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 terms of the statute do not require that a summons be

filed in order to obtain judicial review, but only that copies of the 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

proceeding, in which the parties have been determined and are already of record.


                                          -6-
Therefore, the service of a summons would serve no useful purpose that could not be

accomplished by the statutorily required service of the petition, and it is not required

in order to commence the judicial proceeding.



              In a footnote, the court observed that this rationale would not apply if a

party or agency that was not a party to the administrative proceedings were made a

party to the proceedings for judicial review. But of course that is not the case before

us.



              The Supreme Court issued its opinion in the Jaco case on August 25,

1997, subsequent to the Chancery Court’s order in the present case. The question

of whether changes in decisional law are to be applied prospectively only, or

retroactively as well, has been considered many times by our courts. While the

results have varied, the principles have remained consistent.



              The question received a thorough discussion in Cumberland Capital

Corp. v. Patty, 556 S.W.2d 516, 538 (Opinion on Petition to Rehear) (Tenn. 1977).

The Court found it undoubtedly had the power to apply its decisions retrospectively

to cases still before the courts, where such an application would serve the interests

of justice. The overriding consideration in such a situation is fundamental fairness.

See also Marshall v. Marshall, 670 S.W.2d 213 (Tenn. 1984); Kee v. Shelter

Insurance, 852 S.W.2d 226 (Tenn. 1993). Another important consideration is whether

retroactive application of a new procedural rule will enhance the integrity and reliability

of the fact-finding process at trial. Tennessee v. Robbins, 519 S.W.2d 799 (Tenn.

1975).



              In light of the procedural history of this case, we believe that

fundamental fairness requires that Mr. Northcott be heard, and that his petition be

considered timely in accordance with the Supreme Court’s holding in Jaco.


                                           -7-
                                     IV. Res Judicata



               The trial court stated that it found additional grounds for dismissal in the

doctrine of res judicata. A simple definition of this term is that it is a "[r]ule that a final

judgment rendered by a court of competent jurisdiction on the merits is conclusive as

to the rights of the parties and their privies, and, as to them, constitutes an absolute

bar to a subsequent action involving the same claim, demand or cause of action.

Black's Law Dictionary 1172 (5th ed. 1979), as quoted in Richardson v. Tennessee

Bd. of Dentistry, 913 S.W.2d 446 (Tenn. 1995).



               The record reveals that on August 2, 1995, the petitioner filed a

complaint captioned Northcott v. Sundquist, USDC No. 95-CV-746, in 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 dismissed the complaint for failure to state a

claim upon which relief could be granted.



               The record in this case includes the petitioner’s complaint in federal

court, and the Memorandum and Order dismissing the complaint. A careful reading

of these documents reveals that the complaint asserts federal constitutional and

statutory grounds for relief as well as state statutory grounds. The trial judge rejected

the due process, ex post facto and equal protection arguments, and dismissed the

petitioner’s claim under 42 U.S.C. § 1983 for monetary damages and a jury trial.



               Though he discussed the State’s claims, and rejected the contention

that all inmates whose crimes were committed prior to November 1, 1989 were

entitled to have their sentence credits recalculated, the judge also wrote, “[i]n the

current action Petitioner has not demonstrated that he has exhausted his state court




                                             -8-
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-quoted language, we can

fairly conclude that the federal court did not render a decision on the merits as to

whether Mr. Northcott is entitled by state law to have his own sentence credits

recalculated in accordance with the plea in his petition. We therefore 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 effect that a favorable decision

would have on his sentence. We only believe that he has demonstrated that he is

entitled to his day in court, and that the chancery court is obligated to examine his

claim on the merits.



                There is a question of law as to whether Mr. Northcott was entitled to

any form of sentence reduction credits under any of the statutes in effect prior to the

signing of the waiver on March 1, 1986. If that question is decided in his favor, the

court must determine how much of a sentence reduction the applicable statutes

should have provided for him prior to March 1, 1986. The court 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 necessary to decide how many additional

sentence reduction credits Mr. Northcott is entitled to, the court will have to make use

of the expertise in sentence calculation possessed by the Department of Correction.

But it will not be sufficient for the Department to file affidavits containing the results


                                          -9-
of its calculations without providing the calculations themselves. The case of Jones

v. Reynolds, App. No. 01A01-9510-CH-00484 (filed Nashville, July 2, 1997) indicates

the kind of information the Department must provide in order for the petitioner to

receive a meaningful review.



                                         VI.



             The trial court’s action in setting aside its default judgment is affirmed.

In all other respects, the trial court is reversed. This cause is remanded to the

Chancery Court of Davidson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellee.




                                                 ____________________________
                                                 BEN H. CANTRELL, JUDGE


CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




_____________________________
WILLIAM C. KOCH, JR., JUDGE




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