                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                             Assigned on Briefs August 2, 2001

              JEREL HUGHES v. TENNESSEE DEPARTMENT OF
                         CORRECTION, ET AL.

                    Appeal from the Chancery Court for Davidson County
                      No. 00-2096-III   Ellen Hobbs Lyle, Chancellor



                   No. M2001-00074-COA-R3-CV - Filed September 3, 2002


Petitioner, a state inmate, filed the underlying action seeking review of actions taken by the
Tennessee Department of Correction and the Tennessee Board of Probation and Parole, including
the decision of the Board to deny parole and set the next parole hearing two years later. Petitioner
had been convicted of an additional felony while on parole from a previous felony conviction. The
trial court dismissed the petition for failure to state a claim under Tenn. R. Civ. P. 12.02(6). For the
reasons set forth below, we affirm the decision of the trial court.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM C. KOCH , JR., J., joined.

Jerel Hughes, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Ashley S.
Old, Assistant Attorney General, for the appellees, Tennessee Department of Correction and
Tennessee Board of Probation and Parole.

                                              OPINION

        Mr. Hughes, a state prisoner, appeals from the trial court’s dismissal of his action seeking
judicial review by common law writ of certiorari, a declaratory judgment, issuance of a writ of
habeas corpus, and other relief. His lawsuit was based upon the following set of facts, which we
must presume to be true because he appeals from the grant of a motion to dismiss. Bell v. Icard,
Merrill, Cullins, Timm, Furen and Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999).

       Mr. Hughes was convicted and sentenced in 1993 to imprisonment for a term of fifteen (15)
years. He was paroled from that sentence on September 10, 1997. One year later, while on parole
from his original sentence, he committed another offense, aggravated robbery, for which he was
sentenced, on February 11, 1999, to eight (8) years imprisonment, but with all but one year (day for
day) suspended, followed by placement on supervised probation.

        He was served with a parole revocation warrant shortly after his arrest for the 1998 offense,
and he appeared before the Board of Probation and Parole (“Board”) on May 13, 1999. In his brief
Mr. Hughes refers to this hearing as a revocation hearing and states it “was the result of appellant
committing a subsequent offense.” According to the documents attached to Mr. Hughes’s petition,
his parole from his original sentence was revoked and the time for him to begin serving his new
sentence was set for September 15, 1999. The reason for the revocation was indicated as “NF,”
meaning new felony. We note that according to the same form, Mr. Hughes’s sentence was
calculated to expire on January 12, 2005.

        Mr. Hughes alleges that on September 16, 1999, he was “forced to go back before” a Board
hearing officer and that the result was a decision that he had to serve an additional two (2) years and
could be reconsidered by the Board for parole after those two (2) years. Mr. Hughes refers to this
hearing as a “time setting hearing,” but the documents attached to Mr. Hughes’s petition indicate this
was a parole hearing which resulted in a recommendation that he be denied parole. The reasons for
the denial, indicated by checkmarks on the form, were “There is a substantial risk that the offender
will not conform to the conditions of release” and “The offender’s continued correctional treatment,
medical care or vocational or other training in the institution will substantially enhance the offender’s
capacity to lead a law-abiding life when given release status at a later time.” Below these reasons
are handwritten notes stating, “parole violation” and “substance abuse,” which we interpret as being
further explanation of each reason, respectively. This recommendation by the hearing officer was
approved by the Board.

        Mr. Hughes administratively appealed this ruling pursuant to Board procedure, and by letter
dated April 27, 2000, he was informed that his appeal had been denied and that this determination
was final. The letter stated that Mr. Hughes’s appeal from the September 16, 1999 parole grant
hearing had been thoroughly reviewed, that he had not supported his claim that significant new
information or evidence existed which was not available at the time of the hearing, and that his
allegation of substantial procedural irregularity by the hearing officer was unsubstantiated by a
review of the file and the tape of the hearing.

       Subsequently, Mr. Hughes filed a petition for common law writ of certiorari in Davidson
County seeking review of the Board’s decision to decline parole for another two years. During the
course of this litigation in the trial court, Mr. Hughes amended his complaint and filed various other
motions and requests for relief. He named both the Board and the Department of Correction
(hereinafter referred to jointly as “the State”). The trial court issued a memorandum and order
dealing with the various claims for relief and granted the State’s motion to dismiss and denied all
motions filed by Mr. Hughes. In granting the motion to dismiss pursuant to Tenn. R. Civ. P.
12.02(6), the court held that the petition for writ of certiorari was not filed within the sixty (60) day
time limit imposed in Tennessee Code Annotated § 27-9-102 and did not allege any illegal,


                                                   2
fraudulent, or arbitrary action on the part of the Board. The trial court dismissed the motion for
injunctive relief based on the conclusion that Mr. Hughes did not show he was entitled to the relief
he requested. The trial court determined that the petition for habeas corpus relief was inappropriate
because the evidence before the court did not establish that the term of imprisonment had expired
or the judgment was void. The court determined that Mr. Hughes’s motion for extraordinary appeal
was premature and filed in the wrong court. The court denied Mr. Hughes’s request to be brought
before the court because he failed to state a claim under any of the legal theories he asserted. The
trial court denied Mr. Hughes’s motion for declaratory judgment based on lack of jurisdiction
because Mr. Hughes had not previously sought a declaratory order from the Department of
Correction regarding his sentence calculation.

       On appeal, Mr. Hughes raises the following issues: (1) whether the trial court was correct in
dismissing the petition for failure to state a claim; (2) whether the Board exceeded its jurisdiction
or acted in an illegal, arbitrary, or capricious manner; (3) whether the trial court was correct in
dismissing the petition as untimely; (4) whether the trial court was correct in dismissing the petition
for habeas corpus relief; (5) whether the Board was correct in calculating Mr. Hughes’s sentence;
and (6) whether the trial court was correct in denying Mr. Hughes’s motion for appointment of
counsel. Based on the following, we affirm the decision of the trial court.

                                                           I.

         Although the State makes technical procedural arguments herein, relating to relief under
common law writ of certiorari, the writ of habeas corpus, and the Administrative Procedures Act’s
provisions on declaratory judgments, before we address the requirements of the appropriate
procedure, we must first identify Mr. Hughes’s real claim. The State has not responded directly to
what we perceive to be the prisoner’s actual complaint from which he seeks relief. Neither has the
State filed the administrative record regarding actions taken by either the Department of Correction
or the Board regarding Mr. Hughes’s sentence.

       Mr. Hughes filed a petition for writ of certiorari to challenge the decision of the Board
denying his administrative appeal. That decision affirmed the Board’s earlier decision which, in part,
denied parole to Mr. Hughes. However, it is not really the denial of parole to which he objects.
Instead, it is the resetting of his next parole hearing for two years later, when, according to his
argument, he was not required to appear before the Board at all. He argues that at the original
revocation hearing, the Board ordered that his new sentence begin September 15, 1999; that because
his new sentence was for only one year, he was not required to meet with the Board before being
released on supervised probation for the remainder of that sentence; and that the Board’s second
hearing resulted in an order requiring him to serve additional time.1 His argument is based on the


         1
         Mr. Hughes’s position is that both the hearings resulted in decisions by the Board that his new sentenc e beg in
on September 15, 1999, and that during the time between the two hearings he had violated no rules or given the Board
any reason to “bring him back up and take his parole.” Had he begun his new sentence on September 15, 1999, he argues
                                                                                                        (continued...)

                                                           3
proposition that the Board’s setting a date for the beginning of his new sentence automatically caused
his original sentence to end the day before, because those sentences must be served consecutively.

        With regard to Mr. Hughes’s original fifteen (15) year sentence, his parole did not terminate
that sentence. While parole normally terminates confinement, the parolee continues in constructive
custody until the expiration of the full term of his sentence. Parole is nothing more than a
conditional suspension of a sentence. Howell v. State, 569 S.W.2d 428, 432-33 (Tenn. 1978). Upon
revocation of Mr. Hughes’s parole, the Board had wide discretion regarding appropriate continued
incarceration.

        The Board is vested with the duty and authority to decide “the action to be taken” if parole
is violated, Tenn. Code Ann. § 40-28-118(c), and after a parole revocation hearing:

         may, if it sees fit, require such prisoner to serve out in prison the balance of the
         maximum term for which the prisoner was originally sentenced, calculated from the
         date of the delinquency or such part thereof, as it may determine, or impose such
         punishment as it deems proper, subject to the provisions of § 40-28-123.

Tenn. Code Ann. § 40-28-122(d).

         In relevant part, Tenn. Code Ann. § 40-28-123(a) provides:

         Any prisoner who is convicted in this state of a felony, committed while on parole
         from a state prison, jail or workhouse, shall serve the remainder of the sentence under
         which the prisoner was paroled, or such part of that sentence, as the board may
         determine before the prisoner commences serving the sentence received for the
         felony committed while on parole.

        This statute has been in existence for a long time and has included essentially the same
language that now appears in that sentence of Tenn. Code Ann. § 40-28-123(a) quoted above. See
Henderson v. State, 419 S.W.2d 176, 522 (Tenn. 1967).2 Our courts have long interpreted this
statute as precluding a trial court from imposing the sentence for a felony committed on parole to
run concurrently with the original sentence from which the individual was paroled. Henderson, 419
S.W.2d at 522-23 (explaining that the effect of the statute is that the trial judge is powerless to order
such a concurrent sentence); Taylor v. Morgan, 909 S.W.2d 17, 20 (Tenn. Crim. App. 1995); State
v. Buchanan, No. M1999-00980-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 173, at *11-*12
(Tenn. Crim. App. Feb. 29, 2000) (permission to appeal denied Sept. 18, 2000); Bergdoff v. State,
No. 01C01-9508-CC-00279, 1996 Tenn. Crim. App. LEXIS 629, at *11 (Tenn. Crim. App. Oct. 8,


        1
            (...continued)
his sentence would have expired and he would have been released before the date set for his next parole hearing.

        2
            This language was previously found at Tenn. Code Ann. § 40-3620.

                                                         4
1996) (no Tenn. R. App. P. 11 application filed); State v. Sharpe, No. 01C01-9301-CR-00031, 1993
Tenn. Crim. App. LEXIS 832, at *10 (Tenn. Crim. App. Dec. 9, 1993) (no Tenn. R. App. P. 11
application filed); McDaniel v. State, No. 03-C-01-9202-CR-00048, 1992 Tenn. Crim. App. LEXIS
866, at *5 (Tenn. Crim. App. Nov. 13, 1992) (permission to appeal denied Mar. 1, 1993); State v.
Brown, No. 86-203-III, 1987 Tenn. Crim. App. LEXIS 2231, at *1-*2 (Tenn. Crim. App. May 12,
1987) (permission to appeal denied Aug. 3, 1987). See also El-Amin v. Campbell, 973 S.W.2d 222,
223 (Tenn. Ct. App. 1998) (holding that as a matter of law, a sentence for a felony committed while
on parole from a sentence for a felony shall be consecutive to the sentence paroled upon if and when
that parole is revoked).

        Mr. Hughes relies upon the language of Tenn. Code Ann. § 40-28-123(a), and we think his
argument is fairly construed as presenting the question of whether that statute requires the Board to
make the sentences consecutive or, alternatively, whether the statute’s “or such part of that sentence
as the Board may determine” language gives the Board the authority and discretion to direct that the
new sentence begin at a date earlier than the expiration of earlier sentence.3 In other words, does the
Board have authority to allow the prisoner to serve the sentences concurrently? If it does not, Mr.
Hughes argues, then the Board’s action in setting the beginning of his new sentence necessarily
implies a determination that he was not required to serve any more of his original sentence.

         Our courts have determined that the Board has such discretion. In State v. Venable, 606
S.W.2d 298 (Tenn. Crim. App. 1980), the Court of Criminal Appeals considered the argument of
a petitioner that the trial court’s judgment ordering that his sentence for a crime committed while on
parole commence “at the expiration of” his original sentence defeated the operation of Tenn. Code
Ann. § 40-3620 “which provides that a parolee who is convicted of a subsequent felony must serve
the remainder of the sentence under which he was paroled or such part of that sentence as the Parole
Board may determine before he commences serving the subsequent sentence.” Venable, 606 S.W.2d
at 302. The Court of Criminal Appeals concluded that any error in the wording of the judgment
“was probably the result of inadvertence and not an attempt to usurp the parole board’s authority to
determine how much of the defendant’s prior sentence should be served before commencement of
the instant sentence.” Id. See also Walker v. State, No. 01C01-9707-CR-00297, 1998 Tenn. Crim.
App. LEXIS 979, at *6-*7 (Tenn. Crim. App. Sept. 10, 1998) (permission to appeal denied Feb. 1,
1999) (holding that only the Board has the authority to determine the portion of a paroled sentence
that is to be served after revocation and the discretion to determine “concurrency”).

         3
            Our research reveals that the fact situation presented by Mr. Hughes is not unique and that the Board has
apparently been following the same procedure for some time. See, e.g., Garrett v. Tenn. Bd. of Paroles, No. M2000-
00219-COA-R3-CV, 2002 T enn. App. LEX IS 5, at *1-*4 (Tenn. Ct. App. Jan. 4, 2002) (no Tenn. R. App. 11 application
filed) (stating in the facts that M r. Garrett was paro led in 1987 from a life sentence; his parole was revoked after he was
convicted in 1994 of a felony and sentenced to twelve (1 2) years for his seco nd se ntence ; in August 1994 the Bo ard
determined Mr. Garrett would begin serving his twe lve-year sentenc e on F ebruary 8, 1995 ); Crass v. Tenn. Dep’t of
Corr., No. 01-A-01-9409-CH-00434, 1995 Tenn. App. LEX IS 230, at *3-*4 (Tenn. Ct. App. Apr. 12, 1995 ) (no Tenn.
R. App . P. 11 application filed ) (stating in the facts that Mr. Crass arrived at the Department of Correction in 1983 with
a sentence of twenty (20) years; he was paroled in 1988; he was convicted of new crime com mitted while on parole and
was given a sentence of thirty-six (36) years; his parole was revoked, and the Board ordered that his new conviction be gin
December, 1991.

                                                             5
        It has been held that even though a trial court may not impose concurrent sentences in the
situation of a felony committed while on parole, the court may recommend to the Board that it allow
the prisoner to serve both sentences concurrently. State v. Herron, No. 249, 1990 Tenn. Crim. App.
LEXIS 680, at *4-*5 (Tenn. Crim. App. Oct. 11, 1990) (permission to appeal denied Jan. 14, 1991).
Apparently, it was common practice at one time for the Board to take into consideration the trial
court’s recommendation on the application of the consecutive sentence statute. Henderson, 220
Tenn. at 522-23, 419 S.W.2d at 177-78. Nonetheless, it is within the Board’s authority and
discretion to set the new sentence, for a felony committed while on parole, to begin to run before the
prisoner has completely served the remainder of the original sentence which was reinstated after
parole revocation.

        The statute clearly gives the Board the authority to decide how much of the prior sentence
must be served before the new sentence commences. Nothing in the language of the statute equates
this decision to the Board’s determination on how much of the reinstated remainder of the prior
sentence must be served before the prisoner can be paroled again. Consequently, we do not agree
with Mr. Hughes’s argument that the Board’s setting of a beginning date for his new sentence must
be interpreted as an implicit decision that he would not be required to serve any portion of the
remainder of his original sentence beyond the date set for beginning the new sentence.4

       In at least three cases, the Court of Criminal Appeals has addressed the same argument as that
made herein by Mr. Hughes and has found it to be without merit. In Crass v. State, No. 03C01-
9304-CR-00135, 1995 Tenn. Crim. App. LEXIS 1013, at *1 (Tenn. Crim. App. Dec. 29, 1995)
(permission to appeal denied May 6, 1996), in a habeas corpus petition, the appellant specifically
alleged that:

        Since the Board of Paroles ordered the petitioner to begin serving time on the
        sentence for the felony committed while on parole on December 1, 1991, they
        effectively vacated the remainder of the prior sentence being served on the 1983
        Grand Larceny conviction as of that date.

The Court of Criminal Appeals, following Fletcher v. Livesay, No. 88-197-III, 1988 Tenn. Crim.
App. LEXIS 792 (Tenn. Crim. App. Dec. 28, 1988) (no Tenn. R. App. P. 11 application filed),
affirmed the judgment of the trial court dismissing the habeas corpus petition. Crass, 1995 Tenn.
Crim. App. LEXIS 1013, at *3-*5. The same result was reached in McMath v. State, No. 01C01-
9608-CC-00360, 1998 Tenn. Crim. App. LEXIS 155, at *3-*4 (Tenn. Crim. App. Feb. 4, 1998) (no
Tenn. R. App. P. 11 application filed). Mr. McMath committed a felony while on release by virtue
of a commutation. His commutation was later revoked, he was sentenced to serve two (2) years on
the new conviction, and the Board recommended that the new two (2) year sentence should begin



        4
         W hile the Board may have the authority to so decide, we cannot assume such was the intention of the Board
when the law d oes not req uire that conclusion, there is no express statement to that effect by the Board, and the
documents indicate a different date for the expiration of the sentence.

                                                        6
on a date well before the expiration of the earlier sentence.5 In a habeas corpus proceeding, Mr.
McMath alleged that his continued incarceration was illegal because he had fully served the sentence
upon which he was being held. He specifically alleged that under Tenn. Code Ann. § 49-28-123(a)
his previously imposed life sentence was terminated by the setting of a beginning time for his new
sentence. Relying on Fletcher v. Livesay, the court rejected that argument and affirmed the trial
court’s dismissal of his habeas corpus petition.

        In Fletcher, the petitioner used the same argument. Mr. Fletcher was sentenced in 1971 to
a term of ninety-nine (99) years, but his sentence was commuted in 1981 to time served and he was
placed on parole and was to remain under supervision until 2021. In 1986, while on parole, he was
convicted of another felony. On January 27, 1987, the Board determined that Mr. Fletcher had
violated his parole and ordered service of the one year sentence on the new conviction to begin from
the date it was imposed, February 7, 1986, “thereby affording Fletcher credit for the time served
while waiting for the Board’s decision.” Fletcher, 1988 Tenn. Crim. App. LEXIS 792, at *3. Mr.
Fletcher claimed that because Tenn. Code Ann. § 40-28-123 requires a sentence for an offense
committed while the prisoner is on parole to be served consecutively to the sentence for which the
prisoner is on parole, the original ninety-nine (99) year sentence terminated upon completion of the
new one-year sentence. Stated another way, the argument was that the action of the Board setting
the beginning of the new sentence had caused the expiration of the ninety-nine (99) year murder
sentence. In considering this argument, the Court of Criminal Appeals stated:

       Application of petitioner’s theory of “absorption” or “merger” would cause the 99-
       year sentence to be “gobbled up” by the one-year sentence; put another way, it would
       effectively reduce the 99-year sentence to a one-year sentence. . . . This result is
       preposterous and absurd; . . . .

Id., 1988 Tenn. Crim. App. LEXIS 792, at *3-*4.

        We conclude that Mr. Hughes remains incarcerated under his original fifteen (15) year
sentence because his parole from that sentence was revoked. The Board’s determination to allow
him to begin serving his new sentence while he is serving the remainder of his original sentence did
not have the effect of terminating or “expiring” the original sentence. By setting another grant of
parole hearing for Mr. Hughes, it is obvious the Board is willing at that time to consider how much
of this original sentence he must serve before he is re-paroled. The fact that he will have begun
serving, and perhaps have completed the incarceration part of, his new sentence can only operate to
his advantage.




       5
           The Governor agreed and signed an order that Mr. McM ath’s new sentence would begin to run on that date.

                                                         7
                                                                II.

        Based upon our determination of the merits of Mr. Hughes’s claim, we agree with the trial
court that he has failed to state a claim upon which relief can be granted and that his complaint was
properly dismissed pursuant to Tenn. R. Civ. P. 12.02(6).6

        No prisoner has a right to be released on parole prior to the expiration of his or her sentence.
Robinson v. Traughber, 13 S.W.3d 361, 364 (Tenn. Ct. App. 1999). Parole is a privilege, and the
power to decide to release a prisoner on parole rests with the Board of Probation and Parole, not the
courts. Hopkins v. Tenn. Bd. of Paroles & Prob., 60 S.W.3d 79, 82 (Tenn. Ct. App. 2001).
Accordingly, because parole decisions are entirely discretionary, Richardson v. Tenn. Dep’t. of Corr.,
33 S.W.3d 818, 820 (Tenn. Ct. App. 2000), Daniels v. Traughber, 984 S.W.2d 802, 803 (Tenn. Ct.
App. 1998), the only vehicle for obtaining judicial review of the Board’s decisions is a common law
writ of certiorari. Thandiwe v. Traughber, 909 S.W.2d 802, 803 (Tenn. Ct. App. 1994).

        The common law writ of certiorari is considered an extraordinary remedy that is not available
as of right. Utley v. Rose, 55 S.W.3d 559, 563 (Tenn. Ct. App. 2001); Blackmon v. Tenn. Bd. of
Paroles, 29 S.W.3d 875, 878 (Tenn. Ct. App. 2000). Under a petition for common law writ of
certiorari, a court’s review of administrative agency decisions is limited to a determination of
whether the administrative body acted within its jurisdiction or acted arbitrarily, capriciously, or
illegally. Cooper v. Williamson County Bd. of Educ., 746 S.W.2d 176, 179 (Tenn. 1987). Because
the Board has the authority to take the action complained of, it has not acted illegally, arbitrarily or
beyond its jurisdiction in refusing parole and setting the next parole hearing. Therefore, Mr. Hughes
has not stated a claim for relief under the common law writ of certiorari.

        Habeas corpus relief for a person incarcerated after conviction of a crime is available only
when a convicting court is without jurisdiction or authority to sentence a defendant or when the
sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1992). Mr. Hughes’s claim is
that his sentence has expired. As discussed above, however, his original fifteen (15) year sentence
has not expired. Consequently, Mr. Hughes has not stated a claim for relief under the writ of habeas
corpus.

        To the extent that Mr. Hughes actually challenged computation of his sentence, it is correct
that such a claim must be brought against the Department of Correction, because the Department is
given exclusive responsibility for “calculating the sentence expiration date and the earliest release
date of any felony offender. . . .” Tenn. Code Ann. § 40-28-129. Such an action must be brought
pursuant to Tenn. Code Ann. § 4-5-225, and a prerequisite is that the petitioner first seek a
declaratory order from the agency. Tenn. Code Ann. § 4-5-225(b). The trial court herein found that



          6
            The Court of Appeals may affirm a judgment on different grounds from those relied on by the trial court when
the trial court reach ed the corre ct result. Con tinental Ca s. Co. v. Sm ith, 720 S.W .2d 4 8, 50 (Te nn. 19 86); Arn old v. City
of Chattanooga, 19 S.W .3d 779, 789 (Tenn. Ct. App. 1999 ).

                                                                8
Mr. Hughes had not sought a declaratory order from the Department concerning his sentence
calculation.

        We are not convinced that Mr. Hughes’s complaint is with the Department’s calculation of
his sentence expiration or any other aspect of his sentence, except to the extent that the Department
did not interpret the Board’s setting of the time for his new sentence to begin as an implicit
determination that his original sentence was fully served on that date. We have addressed that issue
in our discussion of the merits of his principal argument.

        However, this court has previously held that an involuntary dismissal because of the failure
to comply with Tenn. Code Ann § 4-5-225(b) is not an adjudication on the merits which would
preclude future judicial review if the administrative remedy is sought. McMahan v. Whisman, No.
01-A-01-9711-CH-00681, 1998 Tenn. App. LEXIS 353, at *5 (Tenn. Ct. App. May 29, 1998) (no
Tenn. R. App. P. 11 application filed). Therefore, the dismissal of Mr. Hughes’s action on the basis
of failure to request a declaratory order from the Department is without prejudice.

        The last issue presented by Mr. Hughes on appeal is whether the trial court was correct in
denying his motion for appointment of counsel, filed pursuant to Rule 13, Section 1(d)(4) of the
Rules of the Supreme Court of Tennessee. The trial court denied the motion and based its ruling on
the holding in Barish v. Metropolitan Gov’t, 627 S.W.2d 953, 955 (Tenn. Ct. App. 1981), where this
court determined that “there is no absolute right to counsel in a civil action.” See also Memphis Bd.
of Realtors v. Cohen, 786 S.W.2d 951, 953 (Tenn. Ct. App. 1989); Howse v. Johnson, No. M1998-
00513-C0A-R3-CV, 2000 Tenn. App. LEXIS 383, at *6 (Tenn. Ct. App. June 13, 2000) (no Tenn.
R. App. P. 11 application filed). We affirm the decision of the trial court denying Mr. Hughes’
motion for appointment of counsel.

                                                 III.

       Based upon the foregoing, the judgment of the trial court is hereby affirmed. Costs of the
appeal are assessed to appellant, Jerel Hughes, for which execution may issue if necessary.



                                                        ____________________________________
                                                        PATRICIA J. COTTRELL, JUDGE




                                                  9
