                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                            Assigned on Briefs April 19, 2011

 DANNY A. STEWART v. GAYLE RAY, COMMISSIONER, TDOC ET AL.

                 Appeal from the Chancery Court for Davidson County
                    No. 10-457-II   Carol L. McCoy, Chancellor


                  No. M2010-01808-COA-R3-CV - Filed May 19, 2011


Danny A. Stewart, a prisoner serving multiple sentences, some concurrently and some
consecutively, filed a petition for certiorari naming as respondents the Commissioner of the
Department of Correction and heads of various other agencies allegedly responsible for
determining his eligibility for parole (collectively referred to as “TDOC”). He alleges TDOC
is incorrectly calculating his eligibility for parole in that it is basing its calulation on the
aggregate consecutive sentences of 42 years, whereas the correct method is to calculate
eligibility on each separate sentence so that he would start serving his next consecutive
sentence as an “in custody” parolee of his earliest consecutive sentence. The trial court
dismissed the case based on Stewart’s failure “to exhaust his administrative remedies,” i.e.,
by seeking a “declaratory order from TDOC before filing the present action.” Stewart
appeals. We vacate the order of dismissal and remand for further proceedings.

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

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Danny A. Stewart, Nashville, Tennessee, appellant, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, and Pamela S. Lorch, Senior Counsel,
Nashville, Tennessee, for the appellees, Gayle Ray, Commissioner, Tennessee Department
of Correction; Candice Whisman, Director, Sentence Claculation/Sentence Information
Department; Tennessee Board of Probation and Parole; William Parsons, Director, Parole
Hearings; and Charles Traughber, Chairperson, Tennessee Board of Probation and Parole.
                                          OPINION

                                               I.

        In 2003, Stewart entered a guilty plea to multiple drug charges. He was sentenced to
prison on each charge, some to be served concurrently and some to be served consecutively.
The consecutive sentences total 42 years, in increments of 20 years, 12 years and 10 years.
He was first denied parole in 2006 after a “safety valve” hearing; he was scheduled for a
rehearing in three years. On October 19, 2009, the subsequent parole hearing was held.
Stewart was again denied parole. He filed a request for an appeal hearing with the Tennessee
Board of Probation and Parole based on alleged “significant procedural errors.” He attached
to his request an explanation of his reasons in which he argued that, pursuant to Howell v.
State, 569 S.W.2d 428 (Tenn. 1978), an inmate with separate determinate sentences must be
considered for parole on each sentence separately. He argued that TDOC was acting in
violation of Howell by calculating his eligibility based on his aggregate sentence of 42 years.
The Board of Probation and Parole denied the appeal in a letter dated January 27, 2010. The
letter advised Stewart that the review was conducted in accordance with Tenn. Code Ann §
40-28-105 and the Administrative Rules and Regulations of the Tennessee Board of
Probation and Parole, and, significantly, further advised that the “disposition is final and
there is no further appeal recourse available to you on this matter through the Tennessee
Board of Probation and Parole.”

        On March 17, 2010, Stewart filed his petition for writ of certiorari. The substance of
his allegations is that he became eligible for parole sometime in 2006 and that, at least by the
time of the 2009 parole hearing, he should have been earning credit toward his second
sentence as an in custody parolee on his first sentence. This, according to the allegations of
Stewart’s complaint, is what Howell requires. The complaint also fairly alleges that even
after Stewart attempted to bring the error to TDOC’s attention through his administrative
appeal, it persisted in its error. The complaint incorporates numerous exhibits which include
TDOC’s notification of denial of parole, the request for appeal, and the denial of appeal. The
complaint specifically alleges that “once [Stewart] has complied with his right to appeal . . .
the [TDOC] decision to deny him parole from custody, there exists no other plain, speedy,
or adequate remedy available for him to address the issues . . . .”

       TDOC filed a motion to dismiss on the sole ground that “Stewart has failed to allege
and show that he filed a petition for declaratory order from the Tennessee Department of
Correction prior to filing the court petition, in derogation of Tenn. Code Ann. § 4-5-225(b).”
The trial court agreed with TDOC and granted the motion. The order of dismissal states, in
pertinent part:



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                 Although the Petitioner has styled this case as a certiorari action,
                 the statutory scheme implementing common law certiorari
                 envisions judicial review of a final order or judgment issued
                 after a hearing by a board, commission, or officer exercising
                 judicial or quasi-judicial authority. Bernard v. Metropolitan
                 Government of Nashville and Davidson County, 237 S.W.3d
                 658, 664 (Tenn. Ct. App. 2007). The statutes also contemplate
                 that a record of the hearing will be examined by the reviewing
                 court. Id. In contrast, a declaratory judgment action brought
                 pursuant to Tenn. Code. Ann. § 4-5-225 of the Uniform
                 Administrative Procedures Act (“APA”) is an original action
                 that allows a party to challenge the legal validity of a statute,
                 rule, or order of an agency, or its application to specific
                 circumstances. Utley v. Rose, 55 S.W.3d 559, 562-563 (Tenn.
                 Ct. App. 2001).

                 In the present case, the Petitioner contends that TDOC failed to
                 schedule him for custodial parole hearings on his consecutive
                 determinate sentences. There is no underlying hearing to form
                 the basis for certiorari review.1 Instead, the Petitioner alleges
                 that the Respondents have misapplied the law to his particular
                 circumstances.       Accordingly, this action is properly
                 characterized as a Declaratory Judgment action.

                 Before seeking a declaratory judgment, a petitioner must first
                 seek a declaratory order from the underlying agency. Watson v.
                 Tennessee Department of Correction, 970 S.W.2d 494, 497
                 (Tenn. Ct. App. 1998). Tenn. Code Ann. § 4-5-225(b) states
                 that

                         a declaratory judgment shall not be rendered
                         concerning the validity or applicability of a
                         statute, rule or order unless the complainant has
                         petitioned the agency for a declaratory order and


        1
          The Petitioner states that he had a parole hearing on October 19, 2009, as a result of which he was
denied parole. He further states that he appealed the denial on December 10, 2009 and that his appeal was
denied in a letter dated January 27, 2010. The Petitioner is not seeking judicial review of this parole decision
in the present action.


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                     the agency has refused to issue a declaratory
                     order.

              Thus, before this case can proceed, the Petitioner is required by
              statute to exhaust his administrative remedies.

              Nowhere in the petition does the Petitioner state that he sought
              a declaratory order from TDOC before filing the present action.
              The Tennessee Supreme Court has stated that “[i]n no uncertain
              terms, [Section 4-5-225] requires a prospective plaintiff to make
              a request for a declaratory order with an agency before bringing
              an action for a declaratory judgment in the Chancery Court.”
              Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 842 (Tenn.
              2008)(citing Watson v. Tenn. Dep’t of Corr., 970 S.W.2d 494
              (Tenn. Ct. App. 1998)).


(Brackets and footnote in original.)

                                             II.

       Stewart has articulated several issues in his brief, but the focus of his appeal is
whether the trial court erred in dismissing his case for failure to exhaust his administrative
remedies. Our standard of review of such a dismissal is de novo without a presumption of
correctness. Bernard v. Metropolitan Government, 237 S.W.3d 658, 662 (Tenn. Ct. App.
2007).

                                             III.

      There can be no doubt that one seeking a declaration that his sentence is being
improperly calculated for parole purposes must first allow TDOC or its designee an
opportunity to address the question. As we stated in Bonner v. Tennessee Dept. Of
Correction, 84 S.W.3d 576 (Tenn. Ct. App. 2001),

              It is settled that an inmate may seek judicial review of the
              Tennessee Department of Correction’s calculation of the
              prisoner’s sentence, including reduction credits, pursuant to
              Tenn.Code Ann. § 4–5–101 et seq , but that inmate must first
              seek a declaratory order regarding the sentence calculation from
              the Department. Tenn.Code Ann. § 4–5–225(b); Watson v.

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              Tennessee Dep’t of Corr., 970 S.W.2d 494, 497 (Tenn. Ct. App.
              1998); see also Jones[v. Reynolds], 1997 WL 367661, at *2
              [(Tenn. Ct. App. July 2, 1997)] (the manner of calculation of
              prisoner’s sentence, including credits, was subject to review by
              petition for declaratory judgment).

              The plain language of Tenn.Code Ann. § 4–5–225 requires a
              petitioner to seek a declaratory order from the agency as a
              prerequisite to filing a petition for declaratory judgment with the
              court. Absent evidence that such an order was sought, the
              petition must be dismissed for lack of subject matter
              jurisdiction. Watson, 970 S.W.2d at 497.

Id. at 583; but see Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827 (Tenn. 2008)(holding
some applications of the statute to be unconstitutional in violation of the separation of powers
doctrine).

       The statute relied upon by us in Bonner states as follows:

              A declaratory judgment shall not be rendered concerning the
              validity or applicability of a statute, rule or order unless the
              complainant has petitioned the agency for a declaratory order
              and the agency has refused to issue a declaratory order.

Tenn. Code Ann. § 4-5-225(b)(2005).

        We note, however, that neither the statute nor the cases specify the exact form that a
request for a declaratory order from the agency must take. In the absence of authority to the
contrary, we hold that any written request which makes the agency aware of the substance
of the controversy and asks the agency to act in accordance with a suggested course of action
is sufficient.

       Stewart argues that, after TDOC denied his appeal, he had “no other administrative
remedy to exhaust; nor, is there any plain, speedy, or adequate administrative remedy to
address the issue(s) raised after the . . . decision [to deny in custody parole].” We agree.
Stewart’s request for appeal to TDOC clearly raised the issue of whether the TDOC was
calculating his sentence and his eligibility for parole in contravention of Howell. Further,
it asked TDOC to act in accordance with Howell and to not base eligibility for parole on his
aggregate sentence. TDOC denied Stewart’s request and told him that the decision was final
and that there was no further avenue of appeal. We hold that the request for appeal on the

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basis of Howell and the letter denying appeal satisfied the requirement of requesting a
declaratory order from the agency prior to filing what the trial court treated as a declaratory
judgment action.

        Alternatively, we hold that, even if the trial court did not have subject matter
jurisdiction over the case as a declaratory judgment action, it had subject matter jurisdiction
through the writ of certiorari, codified now at Tenn. Code Ann. § 27-9-101 (2000)2 . It is not
always easy to determine whether a case is properly brought as a declaratory judgment action
or by demand for a writ of certiorari. See Bernard, 237 S.W.3d at 662-65; Thompson v.
Department of Codes Admin., 20 S.W.3d 654, 659-60 (Tenn. Ct. App. 1999). In general
illustrative terms, a declaratory judgment action is the proper vehicle to challenge the validity
of a statute or a rule, whereas certiorari is the vehicle for challenging an agency’s final
determination after a hearing that requires application of the statute or rule. Bernard, 237
S.W.3d at 665. Sometimes, however, provided the case is timely filed and the jurisdictional
prerequisites are met, a given case might qualify for judicial review under both the
declaratory judgment statute and the writ of certiorari. See Bonner, 84 S.W.3d at 582-83
(case was untimely as an action for certiorari and did not ask for a declaratory order of the
agency so as to qualify as a declaratory judgment action); Thompson, 20 S.W.3d at 660
(since the litigant did not perfect a certiorari action by asking for a hearing that would allow
preparation of a record for judicial review, the matter would be reviewed as a declaratory
judgment action).

        In the present case, Stewart did all he could do to secure a hearing with the TDOC that
would allow for review, and he appealed the matter as high as he could within the
administrative agency. Morever, he alleged in his petition that the agency was acting
illegally and beyond its jurisdiction, and he filed the matter as a “petition for common law
writ of certiorari” less than 60 days of the denial of his request for appeal. His petition
specifically references “T.C.A. § 27-9-101 et seq.” as a basis of jurisdiction. We are aware


       2
           The statute provides, in pertinent part, as follows:

                  Anyone who may be aggrieved by any final order or judgment of any board
                  or commission functioning under the laws of this state may have the order
                  or judgment reviewed by the courts, where not otherwise specifically
                  provided, in the manner provided by this chapter.

Id.




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that the trial court stated in a footnote to its order of dismissal that “Petitioner is not seeking
judicial review of [the denial of parole as a result of the October 19, 2009, hearing and the
denial of appeal by letter of January 27, 2010] in the present action.” We believe the trial
court is reading the allegations of the pro se complaint too narrowly. Courts must be mindful
when dealing with a pro se litigant to read the pleadings for their substance more than for
their form. Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct. App. 2003). Pleadings
prepared by pro se litigants are entitled to be construed with as much liberality as pleadings
prepared by attorneys. Id. We believe it is clear that the substance of Stewart's petition is
that he is “seeking judicial review of the . . . parole decision in this action.” It is also clear
that part of the reason he is seeking judicial review is that TDOC continued to ignore Howell,
thereby acting illegally and outside its authority, even after he had pointed out the problem
in his request for appeal from the parole hearing. It is true that Stewart also alleged that
TDOC violated Howell by not holding hearings as they came due. This, we believe, is fairly
read as a permissible alternative pleading. Tenn. Rule. Civ. P. 8.05(2). We hold, therefore,
that the trial court had subject matter to review the administrative action of TDOC pursuant
to Tenn. Code Ann. § 27-9-101.

      Rather than address the merits, we will remand this matter to the trial court for a
determination of the merits of the case. Nothing herein is intended to state an opinion one
way or the other on the merits of the case. We merely hold that the trial court erred in
holding that it did not have subject matter jurisdiction to hear this case.

                                               IV.

       The judgment of the trial court is vacated. Costs on appeal are taxed to the appellees,
Gayle Ray, Commissioner, Tennessee Department of Correction; Candice Whisman,
Director, Sentence Calculation/Sentence Information Department; Tennessee Board of
Probation and Parole; William Parsons, Director, Parole Hearings; and Charles Traughber,
Chairperson, Tennessee Board of Probation and Parole. This case is remanded, pursuant to
applicable law, for further proceedings consistent with this opinion.




                                                      _______________________________
                                                      CHARLES D. SUSANO, JR., JUDGE




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