                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                            Assigned on Brief November 30, 2012

                    CLAUDE T. PHILLIPS
                            v.
   NORTHWEST CORRECTIONAL COMPLEX, WARDEN HENRY
    STEWARD, SGT. JETTIE BALDRIDGE, AND JEFFERY MILLS

                      Appeal from the Lake County Chancery Court
                        No. 5885 Tony A. Childress, Chancellor


               No. W2012-01199-COA-R3-CV - Filed December 27, 2012


This appeal concerns an inmate’s petition for a writ of certiorari. The petitioner inmate was
convicted of disciplinary offenses, which were affirmed by the Tennessee Department of
Corrections. The inmate filed a petition for a writ of certiorari, seeking judicial review of
the convictions. The trial court found that it did not have subject matter jurisdiction to hear
the inmate’s petition because it did not include a recitation that it was his first application for
the writ. We reverse and remand the cause for further consideration in light of Talley v. Bd.
of Prof’l Responsibility, 358 S.W.3d 185 (Tenn. 2011).

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Petitioner/Appellant, Claude T. Phillips, Henning, Tennessee, self-represented

Robert E. Cooper, Jr., Attorney General and Reporter, Bill Young, Solicitor General, and
Shauna Jennings, Assistant Attorney General, Nashville Tennessee, for the
Respondent/Appellees Northwest Correctional Complex, Warden Henry Steward, Sgt. Jettie
Baldridge and Jeffery Mills
                                    MEMORANDUM OPINION 1

                                   FACTS AND PROCEEDINGS BELOW

This is an appeal from the grant of a motion to dismiss. Consequently, we recite the facts as
alleged in the petition and in documents filed in connection with the motion to dismiss.

Petitioner/Appellant Claude T. Phillips is an inmate housed at the West Tennessee State
Penitentiary in Henning, Tennessee. In August 2011, Phillips was brought up on disciplinary
charges for participating in a security threat group and for assaulting another inmate. After
a disciplinary hearing, Respondent/Appellee Northwest Correctional Complex Disciplinary
Board (“Board”) found Phillips guilty of both charges. The Board fined him $10, removed
30 days of sentence credits, and imposed package restrictions. Phillips appealed this decision
to the Commissioner of the Tennessee Department of Corrections; it was affirmed.

On December 15, 2011, Phillips filed a timely petition for a writ of certiorari in the Lake
County Chancery Court against the Board and Respondent/Appellee Henry Stewart, Warden
at the Northwest Correctional Complex (“Warden”), Respondent/Appellee Jettie Baldridge,
Correctional Sergeant, and Respondent/Appellee Jeffery Mills, Correctional Officer
(collectively “Appellees”). Phillips’ petition was signed, notarized, and sworn; it listed the
parties to the action, referred to an affidavit supporting Phillips’ claims, and asked the trial
court to remove the write-ups issued by the Board and reinstate his credits, pay grade, and
minimum custody classification. Phillips’ attached notarized affidavit addressed why each
conviction was unfounded and the insufficiency of the evidence against him. Phillips also
attached notarized statements from his prisoner trust fund account. Neither the petition nor
any of the attached documents stated that this petition was Phillips’ first application for a
writ.

In March 2011, Appellees filed a motion to dismiss Phillips’ petition. The motion asserted,
inter alia, that the petition should be dismissed because it did not state that the petition is
Phillips’ first application for a writ, as required pursuant to Tennessee Code Annotated § 27-


1
    Rule 10. Memorandum Opinion

         This Court, with the concurrence of all judges participating in the case, may affirm, reverse
         or modify the actions of the trial court by memorandum opinion when a formal opinion
         would have no precedential value. When a case is decided by memorandum opinion it shall
         be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
         or relied on for any reason in any unrelated case.

Tenn. Ct. App. R. 10.

                                                     -2-
8-106. Appellees contended that Phillips could not amend the petition to correct the
deficiency because the statutory time limitation had elapsed. They argued that Phillips’
failure to comply with this statutory requirement deprived the trial court of subject matter
jurisdiction to hear the petition. The Appellees’ motion argued several other bases for
dismissing Phillips’ petition.

In his response, Phillips acknowledged that his petition did not contain the language required
under Section 27-8-101, et seq., but argued that his petition was filed pursuant to Section 27-
9-101, et seq. which does not require that the petition state that it is the first application for
the writ. Phillips also responded to the other arguments raised in the motion to dismiss.

In May 2012, the trial court entered an order on the motion to dismiss. It noted all of the
arguments made by Appellees in their motion to dismiss, but addressed only the argument
that Phillips’ petition failed to state that it was the first application for a writ, as required
under Section 27-8-106. Citing Board of Responsibility v. Cawood, 330 S.W.3d 608 (Tenn.
2010) and Section 27-8-106, the trial court held that Phillips’ failure to recite in his petition
that it was the first application for such a writ “deprives this Court of jurisdiction to review
the decision [Phillips] requests be reviewed.” On this basis, the trial court granted the
Appellees’ motion to dismiss and dismissed Phillips’ petition. The trial court’s order did not
address the other grounds for the Appellees’ motion to dismiss. Phillips now appeals.

                      I SSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Phillips presents three issues for review:

       I. Did the Court improperly dismiss the Appellant’s Petition for Common Law
       Writ of Certiorari?
       II. Did the Disciplinary Board deprive the Appellant of his right to Due
       Process?
       III. Did the Disciplinary Board/Hearing Officer deviate from the Tennessee
       Department of Corrections Uniform Disciplinary Procedures, Policy # 502.01?

Issues II and III raised on appeal by Phillips pertain to arguments in the Appellees’ motion
to dismiss that were not addressed by the trial court in the order from which Phillips appeals.
Consequently, we decline to address these issues on appeal. Boykin v. Casher (In re Estate
of Boykin), 295 S.W.3d 632, 636 (Tenn. Ct. App. 2008) (“At the appellate level, ‘we are
limited in authority to the adjudication of issues that are presented and decided in the trial
courts . . . .’ ”) (quoting Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976)). Therefore, we
consider only whether the trial court erred in holding that it lacked subject matter jurisdiction
based on Phillips’ failure to comply with Section 27-8-106.

                                               -3-
Subject matter jurisdiction presents a question of law. Staats v. McKinnon, 206 S.W.3d 532,
542 (Tenn. Ct. App. 2006); Morgan Keegan & Co. v. Smythe, No. W2010-01339-COA-R3-
CV, 2011 WL 5517036, at *3; 2011 Tenn. App. LEXIS 613, at *11 (Tenn. Ct. App. Nov. 14,
2011). We review the trial court’s conclusions of law de novo, affording them no
presumption of correctness. Mimms v. Mimms, 234 S.W.3d 634, 636-37 (Tenn. Ct. App.
2007) (citing Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v.
Bennett, 860 S.W.2d 857, 859 (Tenn. 1993)).

                                                 A NALYSIS

“Subject matter jurisdiction concerns the authority of a particular court to hear a particular
controversy.” Meighan v. U.S. Sprint Commc'ns Co., 924 S.W.2d 632, 639 (Tenn. 1996)
(citing Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994)); see also Osborn v. Marr, 127
S.W.3d 737, 739 (Tenn. 2004); Earls v. Mendoza, No. W2010-01878-COA-R3-CV, 2011
Tenn. App. LEXIS 430, at *16; 2011 WL 3481007, at *5 (Tenn. Ct. App. Aug. 10, 2011).
Subject matter jurisdiction pertains “to the right of the court to adjudicate, or to make an
award through the remedies provided by law upon facts proved or admitted in favor of, or
against, persons who are brought before the court under sanction of law.” Brandy Hills
Estates, LLC v. Reeves, 237 S.W.3d 307, 314-15 (Tenn. Ct. App. 2006). When subject
matter jurisdiction is questioned, the court must ascertain whether it has the authority to
adjudicate the dispute under the Tennessee Constitution, enactments by Tennessee’s General
Assembly, or the common law. Earls, 2011 Tenn. App. LEXIS 430, at *16; 2011 WL
3481007, at *5 (citing Staats, 206 S.W.3d at 542).

A petition for a common law writ of certiorari is the proper mechanism for challenging a
prison disciplinary action.2 Richmond v. Tenn. Dept. of Corrections, No. M2009-01276-
COA-R3-CV, 2010 WL 1730144, at *3 (Tenn. Ct. App. Apr. 29, 2010). The legislature has
mandated certain requirements for such a petition. Tenn. Code Ann. § 27-8-101, et seq. Of
relevance in this case, Section 27-8-106 states: “The petition for certiorari may be sworn to
before the clerk of the circuit court, the judge, any judge of the court of general sessions, or
a notary public, and shall state that it is the first application for the writ.” Tenn. Code Ann.
§ 27-8-106.




2
 Phillips argues on appeal that Section 27-8-106 is inapplicable because he filed his petition pursuant to 27-
9-101, et seq. This argument is without merit. “Because Tennessee Code Annotated § 27-9-102 requires
the aggrieved party to file ‘a petition of certiorari,’ the party seeking review of a board’s decision must also
comply with Tennessee Code Annotated § 27-8-106.” Schaffer v. State Bd. of Prob. & Parole, No.
M2010-01805-COA-R3-CV, 2011 WL 2120169, at *2; 2011 Tenn. App. LEXIS 284, at *5-6 (Tenn. Ct.
App. May 27, 2011).

                                                      -4-
Courts have interpreted Section 27-8-106 to require a petition for a writ of certiorari to
satisfy both “a verification requirement (that the petition be ‘sworn to’) and a recitation
requirement (that the petition ‘state that it is the first application for the writ’).” State v.
L.W., 350 S.W.3d 911, 915 (Tenn. 2011). Until recently, both requirements were considered
necessary for a court to have subject matter jurisdiction to hear the petition. Bd. of Prof'l
Responsibility v. Cawood, 330 S.W.3d 608, 609 (Tenn. 2010).

Recently, however, the Supreme Court issued an opinion, Talley v. Bd. of Prof’l
Responsibility, in which the Court clarified the nature of the verification and recitation
requirements:

       Last year, in a proceeding seeking judicial review of a hearing panel’s
       decision, this Court held that the petition for writ of certiorari required by
       Tenn. Sup. Ct. R. 9, § 1.3 “must be supported by oath or affirmation and state
       that it is the first application for the writ.” Board of Prof'l Responsibility v.
       Cawood, 330 S.W.3d 608, 609 (Tenn. 2010). We also held that “a court lacks
       subject matter jurisdiction over a statutory petition for certiorari that is not
       supported by oath or affirmation.” Board of Prof'l Responsibility v. Cawood,
       330 S.W.3d at 609 (citing Depew v. King's, Inc., 197 Tenn. 569, 570-72, 276
       S.W.2d 728, 728-29 (1955)).

       Because the petition the Board filed in Cawood contained neither an oath or
       affirmation nor a recitation that it was the first application for the writ, we
       concluded that these omissions deprived the trial court of subject matter
       jurisdiction and required this Court to dismiss the Board's appeal. Board of
       Prof'l Responsibility v. Cawood, 330 S.W.3d at 609. We have since applied
       this reasoning to petitions filed by attorneys seeking to review a hearing
       panel’s decision that did not contain an oath or affirmation or a recitation that
       the petition was the first application for the writ. See, e.g., Penn v. Board of
       Prof'l Responsibility, S.W.3d , , 2011 Tenn. LEXIS 438, *1, 2011 WL
       1542989, at *1 (Tenn. 2011); Nebel v. Board of Prof'l Responsibility,
       S.W.3d , , 2011 Tenn. LEXIS 5, *1, 2011 WL 197868, at *1 (Tenn. 2011).

       The Board asserts that Cawood requires us to dismiss Mr. Talley’s appeal.
       However, Mr. Talley’s petition differs significantly from the petition we found
       fatally defective in Cawood. The petition in Cawood contained neither an oath
       or affirmation nor a recitation that it was the first application for the writ. Mr.
       Talley’s petition, however, contains the required affirmation but does not
       contain the recitation that it is the first application for the writ. Accordingly,
       we must now decide whether an otherwise proper petition seeking judicial

                                               -5-
review of a hearing panel’s decision that does not contain the recitation that it
is the first application for the writ is insufficient to confer subject matter
jurisdiction on the reviewing courts.

The courts’ power to issue writs of certiorari flows from Article VI, Section
10 of the Tennessee Constitution. Thus, in order to vest a court with subject
matter jurisdiction in a certiorari proceeding, a petition for writ of certiorari
must satisfy Article VI, Section 10’s requirements. Article VI, Section 10
requires petitions for a writ of certiorari to be “supported by oath or
affirmation.” Because this requirement is constitutional, it is mandatory. See
Beck v. Knabb, 1 Tenn. (1 Overt.) 55, 57-58, 60 (1804). The courts cannot
waive this requirement, Depew v. King’s, Inc., 197 Tenn. at 571, 276 S.W.2d
at 729; Crane Enamelware Co. v. Smith, 168 Tenn. 203, 206, 76 S.W.2d 644,
645 (1934), because it is jurisdictional, and subject matter jurisdiction cannot
be conferred by waiver or consent. McCarver v. Insurance Co. of Penn., 208
S.W.3d 380, 383 (Tenn. 2006); Meighan v. U.S. Sprint Commc'ns Co., 924
S.W.2d 632, 639 (Tenn. 1996).

Conversely, the requirement that a petition for writ of certiorari state that it is
the first application for the writ is not found in the Constitution of Tennessee.
For the purposes of this case, it is found only in Tenn. Code Ann. § 27-8-106
and Tenn. Sup. 7 Ct. R. 9, § 1.3. In 1951, this Court determined that the
omission of the recitation that the petition was the first application for a writ
of certiorari was not jurisdictional when it affirmed a trial court’s decision to
permit a petitioner to amend his petition for writ of certiorari to add the
missing recitation, which was required only by statute, and held that the
amendment “relate[d] back to the filing of the original pleadings.” See
Louisville & Nashville R.R. v. Hammer, 191 Tenn. 700, 705, 236 S.W.2d
971, 973 (1951).

Mr. Talley’s petition for writ of certiorari is deficient because it does not
contain the recitation that it is the first application for the writ as required by
Tenn. Sup. Ct. R. 9, § 1.3. However, unlike the oath or affirmation
requirement, this oversight is waivable. In the present case, the obligation to
meet the recitation requirement arose from this Court’s rule, which directed
appealing parties to adhere the statutory procedures established for pursuing
a writ of certiorari except where altered by Tenn. Sup. Ct. R. 9. There is a
significant difference between expanding the court’s jurisdictional authority
to issue a writ of certiorari beyond that granted by the Constitution of
Tennessee and allowing waiver of a failure to adhere to a court-imposed rule.

                                        -6-
       See Crane Enamelware Co. v. Smith, 168 Tenn. at 206, 76 S.W.2d at 645
       (noting that while a court could not allow an amendment to permit an untimely
       verification of a petition for writ of certiorari, it could waive its own rule).

       The Board did not challenge Mr. Talley’s petition in the trial court. We fail to
       see how the Board has been prejudiced by Mr. Talley’s failure to include the
       recitation in his petition, particularly in light of the undisputed fact that Mr.
       Talley’s petition was, in fact, the first petition for writ of certiorari he filed
       seeking review of the hearing panel’s January 27, 2010 order. Accordingly,
       we find that the Board waived its challenge to the omission of the recitation
       in Mr. Talley’s petition and, therefore, that Mr. Talley’s oversight does not
       deprive the trial court or this Court of subject matter jurisdiction in this
       proceeding.

Talley v. Bd. of Prof. Resp., 358 S.W.3d 185, 191-93 (Tenn. 2011) (noting that the
requirement that a petition for writ of certiorari state that it is the first application for the writ
has existed since 1858) (footnotes omitted).

As in Talley, in the instant case, Phillips’ petition contains the required oath or affirmation,
and lacks only the statutory recitation that the petition is the first application for a writ.
Talley makes it clear that the Appellees’ failure to timely object to this omission may result
in waiver of the objection. The trial court’s order finds that Phillips’ petition lacks the
required recitation, but it does not address Talley or whether the Appellees waived their
objection. See also Stewart v. Derrick, 368 S.W.3d 457, 465 n.18 (Tenn. 2012) (“However,
a petition lacking the requisite recitation, although deficient, does not defeat subject matter
jurisdiction.”) (citing Talley v. Bd. of Prof'l Responsibility, 358 S.W.3d 185, 192-93 (Tenn.
2011)).

Therefore, we must reverse the trial court’s order of dismissal and remand the cause for
further consideration in light of Talley.




                                                 -7-
                                       C ONCLUSION

The decision of the trial court is reversed and the cause is remanded for further proceedings
consistent with this Opinion. Costs on appeal are assessed against Respondent/Appellees,
Northwest Correctional Complex, Warden Henry Steward, Sgt. Jettie Baldridge, and Jeffery
Mills, for which execution may issue if necessary.




                                                          ___________________________
                                                            HOLLY M. KIRBY, JUDGE




                                             -8-
