                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                            Assigned on Briefs January 6, 1999

WOODROW WILSON v. SENTENCE INFORMATION SERVICES,                                          ET AL.

                    Appeal from the Chancery Court for Davidson County
                     No. 98-185-I    Irvin H. Kilcrease, Jr., Chancellor



                    No. M1998-00939-COA-R3-CV - Filed April 26, 2001


This otherwise routine dispute over sentence reduction credits raises a seldom-considered point of
procedure regarding the proper method for deciding contested facts at the preliminary motion stage.
A prisoner filed suit in the Chancery Court for Davidson County against the Tennessee Department
of Correction and other state and city officials asserting that he had not been awarded sentence
reduction credits allegedly earned while incarcerated in the Davidson County Criminal Justice
Center. After the Department filed a Tenn. R. Civ. P. 12.02(1) motion to dismiss on the ground that
the prisoner had not exhausted his administrative remedies, the prisoner asserted that he had
exhausted all of the remedies available to him from the Department. After considering the
arguments and evidentiary materials submitted by both parties, the trial court concluded that the
prisoner had not exhausted his administrative remedies and dismissed the suit. On this appeal, the
prisoner asserts that the trial court erred when it concluded that he had not exhausted his
administrative remedies. We have determined that the evidence regarding the prisoner’s exhaustion
of his administrative remedies does not preponderate against the trial court’s conclusion.
Accordingly, we affirm the dismissal of the suit.

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL , JJ., joined.

Woodrow Wilson, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Patricia C. Kussmann, Assistant Attorney
General, for the appellees, Sentence Information Services, Sentence Management Services, and
Tennessee Department of Correction.

                                           OPINION

       In August 1989, Woodrow Wilson entered a “best interest” guilty plea to two counts of
aggravated sexual battery in order to avoid prosecution for eight counts of aggravated rape. The
Criminal Court for Davidson County sentenced him to two concurrent twenty-year sentences in the
custody of the Tennessee Department of Correction (“Department”).1 Mr. Wilson was initially
incarcerated in the Davidson County Criminal Justice Center because of overcrowding problems in
the Department’s facilities. He was later incarcerated at the South Central Correctional Center in
Clifton, Tennessee.

        Mr. Wilson participated in a voluntary work program while incarcerated in the Davidson
County Criminal Justice Center. At some point in the mid-1990s, Mr. Wilson became convinced
that he was entitled to sentence reduction credits for participating in the Davidson County work
program and that the Department had not properly awarded him these credits. On January 21, 1998,
Mr. Wilson filed a pro se “Motion to Restore Sentence Credits” in the Chancery Court for Davidson
County naming the Department and others as defendants. The Department responded by moving to
dismiss Mr. Wilson’s complaint under Tenn. R. Civ. P. 12.02(1). The Department asserted that the
trial court lacked subject matter jurisdiction over Mr. Wilson’s complaint because he had not
exhausted his remedies by first requesting a declaratory order from the Department as required by
Tenn. Code Ann. § 4-5-225(b) (1998). Mr. Wilson responded by asserting that he had requested a
declaratory order but that the Department never responded to his requests. He also asserted that the
Department had his requests on file.

       Thereafter, the Department filed an affidavit by Wilmer G. Lutche, the employee responsible
for maintaining the records involving requests for declaratory orders, stating categorically that Mr.
Wilson’s request for a declaratory order “was not received by this office.” Mr. Lutche’s affidavit
prompted Mr. Wilson to file his own affidavit, as well as an affidavit by his inmate counselor
regarding his communications with the Department. Mr. Wilson insisted that he had filed
declaratory order requests on September 6, 1994, and October 21, 1994, and provided with his
affidavit what purports to be a copy of a completed petition for declaratory order form signed and
dated September 6, 1994.

       The trial court considered the matter solely on the written record and granted the
Department’s motion to dismiss.2 The court found that it lacked subject matter jurisdiction because
Mr. Wilson had not first sought a declaratory order from the Department. Mr. Wilson has appealed.
To decide this case we must now consider a well-settled tenet of administrative law and a seldom-
considered point of procedure – the exhaustion of remedies doctrine and the proper method for
deciding contested facts at the preliminary motion stage.




         1
          Mr. Wilson challenged the guilty plea proceedings several years later, but the Tennessee Court of Criminal
Appea ls declined to set aside his co nvictions. Wilson v. S tate, 899 S.W.2d 648 (Tenn. Crim. App. 1994).

         2
          The Davidson County Sheriff and the Superintendent of the Davidson County Criminal Justice Center also filed
a motion to dismiss Mr. Wilson’s complaint based on groun ds other than the failure to exhaust administrative rem edies.
The record contains no indication that the trial court ever c onsidered or acted up on this motio n. This ove rsight is largely
academ ic in light of our decision to affirm the dismissal of Mr. Wilson’s complaint for failure to exhaust administrative
remedies. A s a practical m atter, Mr. W ilson may ob tain the relief he see ks only from the Departm ent.

                                                             -2-
                                                       I.
                             EXHAUSTION OF ADMINISTRATIVE REMEDIES

        We live in a day and age where administrative bodies have become a veritable fourth branch
of the government charged with the responsibility for administering a wide variety of statutory
schemes. Chevron, U.S.A., Inc. v. Natural Ress. Def. Council, Inc., 467 U.S. 837, 866, 104 S. Ct.
2778, 2793 (1984); Federal Trade Comm’n v. Ruberoid Co., 343 U.S. 470, 487, 72 S. Ct. 800, 810
(1952) (Jackson, J., dissenting). Government, as we know it today, cannot function without the work
of these administrative agencies.3 Inevitably problems and complaints arise under these
administrative regimes. When disagreements arise, administrative agencies should have the power
and responsibility in the first instance – and sometimes in the final instance – to address them.

        The exhaustion of administrative remedies doctrine reflects the courts’ deference to
administrative expertise. The doctrine provides that parties whose acts and interests are overseen
by an administrative agency ordinarily may not obtain judicial relief for a supposed or threatened
injury until all prescribed administrative remedies have been pursued to their conclusion. Bracey
v. Woods, 571 S.W.2d 828, 829 (Tenn. 1978); 2 Charles H. Koch, Jr., Administrative Law and
Practice § 13.21 (2nd ed. 1997). The exhaustion doctrine serves to prevent premature interference
with agency processes. It also enables an administrative agency to (1) function efficiently and have
an opportunity to correct its own errors; (2) afford the parties and the courts the benefit of its
experience and expertise without the threat of litigious interruption; and, where the agency’s decision
is not a matter’s final determination, (3) compile a record which is adequate for judicial review.
McKart v. United States, 395 U.S. 185, 193-94, 89 S. Ct. 1657, 1662-63 (1969); Thomas v. State Bd.
of Equalization, 940 S.W.2d 563, 566 (Tenn. 1997).

        The doctrine’s salutary purposes notwithstanding, exhaustion of administrative remedies is
mandatory only when required by statute. Otherwise, requiring exhaustion is a matter within judicial
discretion. Thomas v. State Bd. of Equalization, 940 S.W.2d at 566; Coe v. City of Sevierville, 21
S.W.3d 237, 241-42 (Tenn. Ct. App. 2000).

        The exhaustion of administrative remedies principle is germane to this dispute between Mr.
Wilson and the Department. The Department is an administrative arm of the State charged by statute
with the responsibility for incarcerating those who have been convicted of crimes. Tenn. Code Ann.
§§ 4-3-601, -606, 4-6-102 (1998); Tenn. Code Ann. § 41-1-102(a) (1997). One of the Department’s
duties is to maintain the records of prisoners’ sentences. Tenn. Code Ann. § 4-6-140 (1998); Tenn.
Code Ann. §§ 41-21-104, -107(a)(3) (1997). Prisoners who dispute the correctness of the manner
in which the Department has calculated their sentence must take that matter up originally with the
Department by requesting a declaratory order. See, e.g., Greene v. Tennessee Dep’t of Corr., No.
01A01-9608-CH-00370, 1998 WL 382204, at *1 (Tenn. Ct. App. July 10, 1998) perm. app. denied
(Tenn. Oct 19, 1998). As we have said previously, requiring prisoners to first take up the issue with
the Department gives the Department, as the responsible administrative agency, an opportunity to


        3
         The term “agencies” encompasses the boards, commissions, and departments of state government. Tenn. Code
Ann. § 4-5-102(2) (1998).

                                                      -3-
resolve the issue. Seagroves v. Tennessee Dep’t of Corr., No. 01A01-9508-CH-00334, 1997 WL
210857, at *2 (Tenn. Ct. App. Apr. 30, 1997) (No Tenn. R. App. P. 11 application filed).

        Until a prisoner has sought a declaratory order from the Department, the prisoner has not
exhausted his or her administrative remedies. Tenn. Code Ann. § 4-5-225(b) expressly prohibits
courts from rendering declaratory judgments 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 one. A prisoner’s failure to satisfy the statute’s precondition prevents a court from
exercising subject matter jurisdiction over any attempted lawsuit for declaratory relief. Watson v.
Tennessee Dep’t of Corr., 970 S.W.2d 494, 497 (Tenn. Ct. App. 1998).

                                                           II.
          HOW MAY TRIAL COURTS DETERMINE DISPUTED FACTS UNDERLYING A
      PRELIMINARY MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION ?

        The parties in this case presented the trial court with diametrically conflicting evidence
regarding Mr. Wilson’s exhaustion of his administrative remedies. The trial court weighed the
evidence and found in favor of the Department. Mr. Wilson now argues, in his own words, that he
“should have been given the benefit of the doubt on a motion to dismiss.” To decide whether he is
right, we must examine how a court properly goes about deciding disputes of fact when a party
makes a preliminary challenge to a trial court’s subject matter jurisdiction under Tenn. R. Civ. P.
12.02(1).

                                                            A.

       A threshold question in all cases is whether the court has jurisdiction over the lawsuit’s
subject matter. Because courts cannot act where jurisdiction is lacking, a trial court has an
inescapable duty to determine whether the dispute is within its subject matter jurisdiction. Edwards
v. Hawks, 189 Tenn. 17, 23, 222 S.W.2d 28, 31 (1949); State v. Seagraves, 837 S.W.2d 615, 617
(Tenn. Crim. App. 1992). When a court lacks subject matter jurisdiction over the case, it must
dismiss the case without reaching the merits of the complaint. Scales v. Winston, 760 S.W.2d 952,
953-54 (Tenn. Ct. App. 1988).

       Motions to dismiss under Tenn. R. Civ. P. 12.02(1) differ significantly from Tenn. R. Civ.
P. 12.02(6) motions to dismiss for failure to state a claim upon which relief can be granted. While
a motion to dismiss for failure to state a claim requires the court to reach the complaint’s merits, the
other preliminary motions enumerated in Rule 12 deal with procedural defects apart from the
underlying merits of the complaint. Mortensen v. First Fed. Sav. and Loan Ass’n., 549 F.2d 884,
891 (3rd Cir. 1977).4 Because a motion to dismiss for failure to state a claim adjudicates both the


         4
           Tenn. R. Civ. P. 12 is substantially identical to Fed. R. Civ. P. 12, making federal court precedents persuasive
authority in construing o ur rule. Byrd v. H all, 847 S.W.2d 20 8, 211 n. 2 (Tenn . 1993); Bayberry Assocs. v. Jones, 783
S.W.2d 553, 557 (T enn. 199 0); Pacific Eastern Corp. v. Gulf Life Holding Co., 902 S.W .2d 946 , 952 n.7 (T enn. Ct.
App. 1995).

                                                           -4-
legal and factual merits of a plaintiff’s suit, courts considering these motions afford plaintiffs the
safeguard of assuming as true all the plaintiff’s factual allegations and drawing all reasonable
inferences in the plaintiff’s favor. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999); Harvey v.
Ford Motor Credit Co., 8 S.W.3d 273, 275 (Tenn. Ct. App. 1999). If either or both parties submit
evidentiary materials outside the pleadings either in support of or in opposition to a Tenn. R. Civ.
P. 12.02(6) motion and if the trial court decides to consider these materials, the trial court must
convert the motion to dismiss to a motion for summary judgment, Pacific Eastern Corp. v. Gulf Life
Holding Co., 902 S.W.2d at 952, and the court must notify the parties that it has made the
conversion. Teaster v. Tennessee Dep’t of Corr., No. 01A01-9608-CH-00358, 1998 WL 195963,
at *3-4 (Tenn. Ct. App. Apr. 24, 1998) (No Tenn. R. App. P. 11 application filed). Once a motion
to dismiss is converted to a motion for summary judgment, the trial court must deny the motion if
there exists any dispute about the material facts of the case. Byrd v. Hall, 847 S.W.2d at 211; Pate
v. Service Merchandise Co., 959 S.W.2d 569, 573 (Tenn. Ct. App. 1996).

        However, as the Tennessee Supreme Court has recently pointed out, motions to dismiss
merely on jurisdictional grounds are not converted to summary judgment motions when material
factual disputes arise. Chenault v. Walker, 36 S.W.3d 45, 55 (Tenn. 2001). Courts faced with a
motion to dismiss for lack of jurisdiction must make some kind of factual resolution allowing the
court either to grant or to deny the motion. In the court’s words, courts confronted with such
motions must “determine whether the evidence in favor of finding jurisdiction is sufficient to allow
the case to proceed.” Chenault v. Walker, 36 S.W.3d at 56.5

        In considering the sufficiency of the evidence at the motion to dismiss stage, the trial court
must keep in mind that the plaintiff bears the burden of proving facts establishing that the court has
jurisdiction. When a defendant has filed affidavits or other competent evidentiary materials


         5
           Chena ult v. Walker involved a “fa ctual,” as op posed to a “facial,” challen ge to jurisdic tion. These two types
of challenges are different. 2A Jam es W. M oore, et al., Moore’s F ederal Practice an d Procedu re ¶ 12.07[2.-1], at 12-50
through 12-55 (2d ed. 1995). A “facial” challenge ma kes war on th e compla int itself. It asserts that the co mplaint,
considered from top to bottom , fails to allege facts tha t show that the co urt has pow er to hear the case. See, e.g.,
Crawford v. United States Dep’t of Justice, 123 F. Supp. 2d 1012, 1013 (S.D. Miss. 2000) (making a facial challenge
to jurisdiction). In deciding a facial challenge, the court considers the impugned pleading and nothing else. Laird v.
Ramirez, 884 F. S upp. 12 65, 127 2 (N.D . Iowa 199 5); Ensign-Bick ford Co. v. ICI Explosives USA, Inc., 817 F. Supp.
1018, 1023 (D. Conn. 1993). If a complaint merely attacked on its face competently alleges any facts, which if true,
would establish grounds for subject matter jurisdiction, the court must uncritically accept those facts, end its inquiry, and
deny the dismissal m otion. Great Lakes Educ. Consultants v. Federal Emergency Mgmt. Agency, 582 F. Supp. 193, 194
(W.D. Mich. 1984). The method the court uses to evaluate a facial attack is thus similar to the familiar method of
deciding motions to d ismiss for failure to sta te a claim. Jetform Corp. v. Unisys Corp., 11 F. Supp. 2d 788, 789 (E.D.
Va. 199 8); Avellino v. Herron, 991 F. Supp. 722, 725 (E.D . Pa. 1997).

          A “factual” challenge, on the other hand, denies that the court actually has subject matter jurisdiction as a matter
of fact, even though the complaint may allege facts tending to show jurisdiction. It co ntroverts the c omplaint’s factual
jurisdictional allegations, Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed . Cir. 1993), and puts at issue the
sufficiency of evidence to support alleged facts that, if true, would bring the case within a court’s subject matter
jurisdiction. Ensign-Bickford Co. v. ICI Explosives USA, Inc., 817 F. S upp. at 10 23. “Factual” challenges to jurisdiction
create “genuine issues as to ma terial fact,” but co urts must resolv e those factua l issues, at least prelim inarily. Edick v.
Poznanski, 6 F. Supp . 2d 666 , 668 (W .D. Mich . 1998); Malkin v. United States, 3 F. Supp. 2d 493, 497 (D.N.J. 1998).

                                                              -5-
challenging the case’s underlying jurisdictional facts, the plaintiff may not rely on the complaint but
must make a prima facie showing of facts that establish jurisdiction. To do so, the plaintiff may
submit affidavits or other helpful evidence. Tenn. R. Civ. P. 43.02; Chenault v. Walker, 36 S.W.3d
at 56. When evaluating the case at that stage, the trial court “will take as true the allegations of the
nonmoving party and resolve all factual disputes in its favor . . . [without crediting] conclusory
allegations or draw[ing] farfetched inferences.” Chenault v. Walker, 36 S.W.3d at 56. In doing so,
however, the court does “not make any finding as to whether [the plaintiff’s] version of events is,
in fact, correct. That will be for a jury to decide if the case goes to trial.” Chenault v. Walker, 36
S.W.3d at 56.

        While Chenault v. Walker sets out most of the rules for deciding preliminary motions to
dismiss, it does not perfectly fit this case. In cases where the parties have invoked their
constitutional right to trial by jury, a trial court may not, on its own, make factual findings regarding
the merits of the underlying claim. Tenn. R. Civ. P. 39.01. Still, a trial court must decide certain
factual disputes involving merely incidental motions in such cases. By incidental motions, we mean
motions that do not reach a case’s merits. Preliminary motions to dismiss, other than Tenn. R. Civ.
P. 12.02(6) motions, do not involve the merits of the underlying claim.6 Parties losing these motions
ordinarily may remedy the defect causing the dismissal of their suit and, as the poet said, “live to
fight another day.” Accordingly, it is well-settled that preliminary motions, including motions to
dismiss for want of jurisdiction, and the facts underlying such motions, may be decided by the court
alone. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 537-38, 115 S. Ct. 1043,
1050 (1995); Cameron v. Children’s Hosp. Med. Ctr., 131 F.3d 1167, 1170 (6th Cir. 1997); Stewart
v. RCA Corp., 790 F.2d 624, 628 (7th Cir. 1986).7

        On the specific facts of Chenault v. Walker, the Tennessee Supreme Court declined to settle
definitively on the plaintiff’s factual version of the defendant’s conduct at the motion to dismiss
stage. Had the court done so, it would have simultaneously adjudged facts that also went to the
merits of the plaintiff’s underlying claim that the defendant had engaged in conspiracy. For this
reason, the court concluded that “[W]e do not make any finding as to whether [the plaintiff’s]
version of events is, in fact, correct. That will be for a jury to decide . . ..” Chenault v. Walker, 36
S.W.3d at 56. Mr. Wilson’s case before us is different.

        In this case, the only fact put at issue by the State’s motion to dismiss is merely whether Mr.
Wilson requested a declaratory order from the Department prior to January 1998. Whether or not
Mr. Wilson requested this order is in no way entwined with the factual issues underlying the merits
of his claim that he has not received sentence credits for the work he performed while incarcerated
in the Davidson County Criminal Justice Center. To borrow Chenault v. Walker’s language, the


         6
         Deciding the question o f subject ma tter jurisdiction, fo r example , is not an adju dication on the merits. Klein
& Vibber, P.C. v. Collard & Roe, P.C., 3 F. Supp. 2d 167, 169 (D. Co nn. 1998).

         7
           By statute, the prac tice in Tenn essee forme rly was different. A party could demand a jury trial of dispu ted facts
put at issue by a rep lication to a ple a in abatem ent. See Sam B. G ilreath, Caruth ers’ History of a Law suit § 188 (7th ed.
1951) (discussing resolution of disputes of fact underlying pleas in abatement). This statutory procedure was replaced
by the Tennessee Rules of Civil Procedure.

                                                              -6-
issue of whether Mr. Wilson sought a declaratory order from the Department before filing suit would
not “be for a jury to decide if the case goes to trial.” That particular fact would have no relevance
to this suit’s merits. Therefore, nothing prevents the court from making factual findings at the
motion to dismiss stage.

        More importantly, unlike Chenault v. Walker, this is a non-jury case. Ultimately the trial
court will be required to decide all this case’s disputed facts. Tenn. R. Civ. P. 39.02; Warner v.
Maroney, 16 Tenn. App. 78, 90, 66 S.W.2d 244, 249 (1932) (stating that issues not submitted to a
jury are to be tried by the trial court). That being true, nothing prevented the chancery court at the
preliminary motion stage from making the factual finding it implicitly made in this case. The only
question left is whether the trial court employed an allowable fact-finding method when it decided
the facts underlying the Department’s motion to dismiss.

                                                  B.

        Trial courts may employ several procedures when called upon to resolve factual disputes
arising in the context of a preliminary motion challenging their jurisdiction. They may decide the
relevant jurisdictional facts “upon a full trial record, after an evidentiary hearing, or merely on the
basis of a written record.” Berrios v. Department of Army, 884 F.2d 28, 33 (1st Cir. 1989); S & S
Screw Mach. Co. v. Cosa Corp., 647 F. Supp. 600, 605 (M.D. Tenn. 1986). Thus, they may, in their
discretion, grant a preliminary hearing to take evidence on a motion to dismiss. Tenn. R. Civ. P.
12.04, 43.02; Chenault v. Walker, 36 S.W.3d at 56 n.3. They may also decline to hold a hearing, as
long as both parties have been given an opportunity to present their materials to the court. Green
v. WCI Holdings Corp., 136 F.3d 313, 315-16 (2nd Cir. 1998); Villa Marina Yacht Sales, Inc. v.
Hatteras Yachts, 947 F.2d 529, 534 (1st Cir. 1991); Health Care Review, Inc. v. Shalala, 926 F.
Supp. 274, 280 (D.R.I. 1996); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).
This is nothing more than a specific application of the general rule that courts may decide motions
based on written materials. See United States v. Valona, 834 F.2d 1334, 1340 (7th Cir. 1987);
Conway v. Royalite Plastics, Ltd., 12 S.W.3d 314, 318 (Mo. 2000).

       In deciding jurisdictional facts, trial courts may consider the pleadings and affidavits or other
evidence purporting to show the material facts. Schramm v. Oakes, 352 F.2d 143, 149 (10th Cir.
1965); Sterling T.V. Presentations, Inc. v. Shintron, Inc., 454 F. Supp. 183, 186 (S.D.N.Y. 1978);
Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286-87 (Ind. 1994); Gabler v. McColl, 863
S.W.2d 340, 342 (Mo. Ct. App. 1993). They may also weigh written evidence, Cameron v.
Children’s Hosp. Med. Ctr., 131 F.3d at 1170; Davis v. Central Rent-A-Crane, Inc., 663 N.E.2d
1177, 1179 (Ind. Ct. App. 1996), including evidence presented by affidavit. Ty, Inc. v. GMA
Accessories, Inc., 132 F.3d 1167, 1171-72 (7th Cir. 1997); Carolina Power & Light v. Uranex, 451
F. Supp. 1044, 1055 (N.D. Cal. 1977); In re Marriage of Brown, 884 S.W.2d 371, 374 (Mo. Ct. App.
1994); In re Rea, 584 N.E.2d 1350, 1355-56 (Ohio Ct. Cl. 1989).

       As part of weighing the evidence regarding jurisdictional facts, trial courts in non-jury cases
may “make a determination that in many cases will entail believing one party over another.”
Sutherland v. Brennan, 883 P.2d 1318, 1323 (Or. Ct. App. 1994), aff’d on other grounds, 901 P.2d


                                                  -7-
240 (Or. 1995); Bonelli v. Chandler, 331 P.2d 705, 709 (Cal. Dist. Ct. App. 1958). Therefore, when
the affidavits pertinent to jurisdictional facts contradict each other, the court has the power to choose
to rely on one affidavit over the other. See Tanzola v. DeRita, 285 P.2d 897, 901 (Cal. 1955);
O’Brien v. City of Santa Monica, 33 Cal. Rptr. 770, 773 (Dist. Ct. App. 1963).

        The trial court followed a permissible procedure for deciding the Department’s Tenn. R. Civ.
P. 12.02(1) motion. This was a non-jury proceeding, and the trial court exercised its discretion to
resolve the factual disputes surrounding the Department’s jurisdictional defense based on the written
evidentiary materials submitted by the parties. The parties were provided a full and fair opportunity
to submit these materials to the trial court. Accordingly, we have concluded that the trial court did
not err by undertaking to decide the Department’s Tenn. R. Civ. P. 12.02(1) motion without
conducting an evidentiary hearing.

                                                         III.

        Our conclusion that the trial court did not err by deciding the Department’s motion based on
the record does not end the matter. We must still review the decision itself to determine whether it
is the correct one. The trial court implicitly concluded that, as a matter of fact, Mr. Wilson did not
seek a declaratory order from the Department before filing his chancery lawsuit. We review that
finding de novo by examining the trial court record and by presuming that the finding is correct
unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Anderson v. City of
Chattanooga, 978 S.W.2d 105, 107 (Tenn. Ct. App. 1998); Leek v. Powell, 884 S.W.2d 118, 120
(Tenn. Ct. App. 1994) (reviewing an implicit factual finding under Tenn. R. App. P. 13(d)’s
standard).

        Mr. Wilson bore the burden of proving that he had brought his case within the trial court’s
subject matter jurisdiction. Chenault v. Walker, 36 S.W.3d at 56; Mortensen v. First Fed. Sav. &
Loan Ass’n, 549 F.2d at 891; Ensign-Bickford Co. v. ICI Explosives USA, Inc., 817 F. Supp. at 1024;
Vacca v. Meetze, 499 F. Supp. 1089, 1090 (S.D. Ga. 1980). He attempted to carry his burden by
filing two affidavits and an exhibit. In his own affidavit, he asserted that he had sent a request for
a declaratory order to the Department on two occasions in the fall of 1994. In a supporting affidavit,
his inmate counselor asserted that he had assisted Mr. Wilson with these requests. In addition to
these affidavits, the Mr. Wilson submitted what appears to be an original form dated September 6,
1994 requesting a declaratory order.8 To counter this evidence, the Department submitted Mr.
Lutche’s affidavit stating unequivocally that he had searched the Department’s records and that the
Department had never received a request for declaratory order from Mr. Wilson regarding the
prisoner sentence credits he allegedly earned while incarcerated in the Davidson County Criminal
Justice Center.




         8
          The blank spaces on the form have been filled in using two different typewriters. The form also bears the word
“copy” in original blue ink, indicating that it is a copy, and it contains an original signature.

                                                          -8-
       Twenty years ago, Judge Nearn wrote that “[t]o weigh evidence is a task of fact.” Hohenberg
Bros. Co. v. Missouri Pacific R.R. Co., 586 S.W.2d 117, 120 (Tenn. Ct. App. 1979). In our system
of government, that task falls principally on the trial courts. As we have recently said:

                  The trial judge’s major role is the determination of fact, and with
                  experience in fulfilling that role comes expertise. Duplication of the
                  trial judge’s efforts in the court of appeals would very likely
                  contribute only negligibly to the accuracy of fact determination at a
                  huge cost in diversion of judicial resources. In addition, the parties
                  to a case on appeal have already been forced to concentrate their
                  energies and resources on persuading the trial judge that their account
                  of the facts is the correct one; requiring them to persuade three more
                  judges at the appellate level is requiring too much.

Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn. Ct. App. 1998) (quoting Anderson v. City of
Bessemer City, 470 U.S. 564, 574-75, 105 S. Ct. 1504, 1512, 84 L. Ed. 2d 518 (1985)).

        As we view the record in this case, the trial court must have decided to believe the
Department and to disbelieve Mr. Wilson. For this court to hold that the evidence preponderates
against the trial court’s factual determination, we would be required to conclude that “the greater
weight of the evidence as it pertains to the determinative issue”9 favors Mr. Wilson’s account rather
than the Department’s. We cannot do that based merely on the fact that Mr. Wilson submitted one
more affidavit than did the State. Nor must we conclude that Mr. Wilson’s exhibit was the clincher.
The trial court appears to have examined Mr. Wilson’s proffered “copy” of a declaratory order
request form with an eye toward the traditional earmarks of documents as evidence10 and to have
determined that it lacked indicia of authenticity. Thus, the trial court could very well have concluded
that the document had been manufactured to support Mr. Wilson’s effort to avoid dismissal of his
lawsuit. We have carefully examined the evidentiary materials submitted by the parties, and we
cannot say that the evidence preponderates against the trial court’s implicit finding that Mr. Wilson
did not petition the Department for a declaratory order regarding his sentence reduction credits
before seeking a declaratory judgment from the chancery court.

                                                           IV.

        We affirm the dismissal of Mr. Wilson’s complaint on the ground that the trial court lacked
subject matter jurisdiction because Mr. Wilson had failed to exhaust his administrative remedies.
In addition, we remand the case to the trial court for whatever further proceedings consistent with
this opinion may be required. Nothing in this opinion should be construed to prevent Mr. Wilson

         9
         In re Estate of Tittle, 485 S.W.2d 255, 26 0 (Tenn . Ct. App. 1 972) (d iscussing what it m eans for evid ence to
“preponderate” one way or the other).

         10
           These earmarks include: (1) the genuineness of the signature, (2) the genuineness of the typewriting, (3)
whether the document contains changes or alterations, (4) whether it appears to have been composed by the signer, and
(5) whether it seems too re cent to be ge nuine. Alber t S. Osbo rn, Questioned Docum ents 241 (2d ed. 1929).

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from filing a proper request for a declaratory order regarding the calculation of his sentence credits
or from seeking judicial review of the Department’s response to his request for a declaratory order.
We also tax the costs of this appeal to Woodrow Wilson for which execution, if necessary, may
issue.



                                                       ____________________________
                                                       WILLIAM C. KOCH, JR., JUDGE




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