                                                                                         05/16/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                          Assigned on Briefs March 1, 2018

            FREDRICK SLEDGE v. TENNESSEE DEPARTMENT
                      OF CORRECTION, ET AL.

          Appeal from the Chancery Court for Nashville and Davidson County
                No. 16-1073-I   Claudia C. Bonnyman, Chancellor


                            No. M2017-01510-COA-R3-CV


Fredrick Sledge (“Petitioner”) appeals the June 16, 2017 order of the Chancery Court for
Nashville and Davidson County (“the Trial Court”) dismissing Petitioner’s October 2016
petition for declaratory judgment (“2016 Petition”) based upon the prior suit pending
doctrine. We find and hold that the prior suit pending doctrine applies as Petitioner had a
prior suit pending involving the same parties and the same subject matter in a court that
had both personal and subject matter jurisdiction. We, therefore, affirm the Trial Court’s
June 16, 2017 order dismissing Petitioner’s petition.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and ARNOLD B. GOLDIN, JJ., joined.

Fredrick Sledge, Only, Tennessee, pro se appellant.

William H. Slatery, III, Attorney General and Reporter; Andrée Blumstein, Solicitor
General; and Pamela S. Lorch, Senior Counsel for the appellee, Tennessee Department of
Correction.
                                       OPINION

                                      Background

       Plaintiff, a State inmate, filed the 2016 Petition against the Tennessee Department
of Correction, Commissioner, Tony Parker and Douglas Stephens, et al. (“the State”)
challenging the the State’s application of sentence credits and the calculation of
Plaintiff’s sentences. The State filed a motion to dismiss alleging that Plaintiff had a
prior suit pending with regard to the same issues, which was filed in 2014 in the
Chancery Court in Davidson County (“2014 Petition”).

        The Trial Court entered its order on June 16, 2017 dismissing the 2016 Petition
after finding and holding, inter alia:

              In its Motion to Dismiss and supporting memorandum, the State
      asserts that the Petitioner raised the same issues of sentence credits and
      sentence calculation in Fredrick Sledge v. Tennessee Department of
      Correction, 14-1041-III, which the State further asserts is still currently
      pending. The State argues that the three prerequisites necessary for
      dismissing a suit under the doctrine of prior suit pending are present (the
      two suits involve the same subject, the same parties, and the prior suit is
      still pending) and therefore the later filed suit now before this Court must
      be dismissed.

             In a series of no less than three responses in opposition, the
      Petitioner argues that the two suits are over different subject matters.
      Specifically, the Petitioner states that the prior suit alleged the Department
      of Correction failed to apply all pretrial credits to which the Petitioner was
      due, while his second suit now alleges the Department of Correction failed
      to apply all Program Sentence Reduction Credits (PSRC) to which he is
      due. The Petitioner forcefully argues that these two issues are “separate
      and distinct” because they address different types of credits governed by
      different statutory provisions. The Petitioner also argues that this Court has
      subject matter jurisdiction to address the second suit because he also raises
      claims of a violation of his 14th Amendment right to due process.

             The Court notes that the two enumerated claims raised in both suits
      filed by the Petitioner are in fact nearly identical. In both the 2014 and
      2016 petitions for Declaratory Judgment, the Petitioner raises two “Legal
      Questions Presented for Review.” His first question raises the issue
      whether the Department violated the law set forth in State v Burkhart by
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making him serve 100% of his aggravated robbery sentence before
becoming eligible for parole. This same question is stated in nearly
identical terms in both suits. The Petitioner’s second question raises the
issue of sentence calculation and proper application of sentence credits. In
his 2014 suit the Petitioner alleges the Department erred in calculating the
date his life sentence began and in applying the correct amount of pretrial
jail credits. In his 2016 suit the Petitioner alleges the Department erred in
calculating the date his life sentence began and in applying the correct
Program Sentence Reduction Credits (PSRC). Additionally, the Petitioner
attached many of the same supporting documents to both petitions.

                                     ***

       As to the requirements that the prior suit still be pending in a court
of competent jurisdiction, the records of the Davidson County Clerk and
Master reveal that Fredrick Sledge v. Tennessee Department of Correction,
14-1041-III is on appeal with the Tennessee Court of Appeals.
Additionally, the file records also show that there are unresolved motions
currently pending in the trial court, and as such perhaps the Part III
Chancery Court has retained jurisdiction. Nevertheless, the 2014 case is
without question still pending.

                                     ***

        In this case, the claims in both suits are essentially over the identical
subject matter of challenging the Department of Correction’s application of
sentence credits and its calculation of the Petitioner’s sentences, including
parole eligibility, release date and expiration date. Indeed, the Petitioner
never contests the State’s claim that his first issue for review pertaining to
parole eligibility is the same in both the 2014 and 2016 suits, and this Court
likewise finds there is no difference between these claims. As such, it was
improper for Mr. Sledge to raise this identical claim in a second suit while
his first suit is still pending.

       As to the second claim, the Petitioner does argue that his two suits
raise different issues as to sentence credit application because there are two
different types of sentence credits involved. However, this Court finds that
the two sentence credit claims are over the same subject matter because
both claims could have been raised in the first suit, and both claims
pertained to the same subject of the first lawsuit, i.e., the correct application
of sentence credits so as to reach the overall correct sentence calculation.
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              Upon remand from the Court of Appeals, the Department obtained
       amended sentencing orders from the Shelby County trial court that
       corrected the duplication of jail credit previously awarded. Accordingly,
       the Chancery Court, in Mr. Sledge’s 2014 suit, issued a Memorandum and
       Order Closing Case Upon Carrying Out Remand in which the Court stated
       that the questions raised by the Court of Appeals were resolved by the
       Department’s recalculation of Mr. Sledge’s sentence as set forth in the June
       16, 2016 affidavit of Candace Whisman. Accordingly, the Chancery Court
       relied upon the facts set forth in the 2016 Whisman affidavit to resolve the
       issues of credit application and sentence calculation in Mr. Sledge’s 2014
       suit, which is now currently on appeal, for the second time.

               Mr. Sledge may not file a second, separate suit challenging facts set
       forth in the 2016 Whisman affidavit filed in his 2014 case while his 2014
       case is still pending. The issue of the application of his PSRC credits and
       any differences between their application as described in the two Whisman
       affidavits submitted in his 2014 case are issues to be addressed in his 2014
       case. The start date of Mr. Sledge’s PSRC credits concerns the same issue
       (application of credits) that could have been raised (and in fact was raised)
       in Mr. Sledge’s first suit. Moreover, the start date of his PSRC credits is
       the same subject as his prior 2014 suit (the application of credits and the
       resulting calculation of his sentence). Therefore the second issue raised by
       the Petitioner in his 2016 case filed with this Court is over the identical
       subject matter that was raised in his prior 2014 suit, which is still pending.

              Accordingly, this Court holds the 2016 suit should be barred by the
       prior suit pending doctrine.

Petitioner appeals the dismissal of his 2016 Petition.

                                        Discussion

      Petitioner attempts to raise several issues on appeal. The dispositive issue,
however, is whether the Trial Court erred in granting the State’s motion to dismiss and
dismissing Petitioner’s 2016 Petition. As our Supreme Court has instructed:

              A motion to dismiss a complaint for failure to state a claim for which
       relief may be granted tests the legal sufficiency of the plaintiff’s complaint.
       Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 894 (Tenn. 2011); cf. Givens
       v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 406 (Tenn. 2002).
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      The motion requires the court to review the complaint alone. Highwoods
      Props., Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009).
      Dismissal under Tenn. R. Civ. P. 12.02(6) is warranted only when the
      alleged facts will not entitle the plaintiff to relief, Webb v. Nashville Area
      Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011), or when the
      complaint is totally lacking in clarity and specificity, Dobbs v. Guenther,
      846 S.W.2d 270, 273 (Tenn. Ct. App. 1992) (citing Smith v. Lincoln Brass
      Works, Inc., 712 S.W.2d 470, 471 (Tenn. 1986)).

             A Tenn. R. Civ. P. 12.02(6) motion admits the truth of all the
      relevant and material factual allegations in the complaint but asserts that no
      cause of action arises from these facts. Brown v. Tennessee Title Loans,
      Inc., 328 S.W.3d 850, 854 (Tenn. 2010); Highwoods Props., Inc. v. City of
      Memphis, 297 S.W.3d at 700. Accordingly, in reviewing a trial court’s
      dismissal of a complaint under Tenn. R. Civ. P. 12.02(6), we must construe
      the complaint liberally in favor of the plaintiff by taking all factual
      allegations in the complaint as true, Lind v. Beaman Dodge, Inc., 356
      S.W.3d at 894; Webb v. Nashville Area Habitat for Humanity, Inc., 346
      S.W.3d at 426; Robert Banks, Jr. & June F. Entman, Tennessee Civil
      Procedure § 5–6(g), at 5–111 (3d ed. 2009). We review the trial court’s
      legal conclusions regarding the adequacy of the complaint de novo without
      a presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d at
      895; Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d at 700.

SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467, 472 (Tenn. 2012).

       The Trial Court dismissed the 2016 Petition based upon the prior suit pending
doctrine. This Court has discussed the doctrine of prior suit pending stating:

              The doctrine of prior suit pending is instructive on this issue. The
      doctrine of prior suit pending “is derived from the ancient common-law
      rule prescribing that a person ‘shall not be . . . twice vexed for one and the
      same cause.’ ” West v. Vought Aircraft Industries, Inc., 256 S.W.3d 618,
      622 (Tenn. 2008) (quoting Sparry’s Case, (1591) 77 Eng. Rep. 148, 148
      (Exch.); accord Ex parte State Mut. Ins. Co., 715 So.2d 207, 213 (Ala.
      1997)). Under the rule as it evolved under common-law, “a party could
      have an action barred on procedural grounds if there was a prior suit
      pending against him in the same jurisdiction for the same cause of action.”
      Id. (citing 1 William M. McKinney, The Encyclopedia of Pleading and
      Practice: Under the Codes and Practice Acts, at Common Law, in Equity
      and in Criminal Cases 750–51 (Northport, Edward Thompson Co. 1895);
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       Sparry’s Case, 77 Eng. Rep. at 148). The philosophical underpinnings of
       the rule has [sic] been summarized as:

               The law abhors multiplicity of actions; and therefore
               whenever it appears on record, that the plaintiff had sued out
               two writs against the same defendant for the same thing, the
               second writ shall abate; for if it were allowed that a man
               should be twice arrested, or twice attached by his goods for
               the same thing, by the same reason he might suffer in
               infinitum; . . . if there was a writ in being at the time of suing
               out the second, it is plain the second was vexatious, and ill ab
               initio.

       Id. at 622–623 (quoting 1 Matthew Bacon, A New Abridgement of the Law
       22 (7th ed. London, Strahan 1832)).

               Under this “fixture of American common law[,]” an action will be
       dismissed when another suit is pending on the same subject matter. Id.
       (citation omitted). The defense of prior suit pending contains four
       elements: “1) the lawsuits must involve identical subject matter; 2) the
       lawsuits must be between the same parties; 3) the former lawsuit must be
       pending in a court having subject matter jurisdiction over the dispute; and
       4) the former lawsuit must be pending in a court having personal
       jurisdiction over the parties.” Id. (citations omitted).

Childs v. UT Med. Group, Inc., 398 S.W.3d 163, 169–70 (Tenn. Ct. App. 2012).

       At the time of entry of the Trial Court’s order on the State’s motion to dismiss, the
case involving the 2014 Petition was pending on appeal before this Court.1 Both the
2016 Petition and the 2014 Petition involve the same parties. There is no question that
this Court had both subject matter jurisdiction and personal jurisdiction over the parties in
the case involving the 2014 Petition. Furthermore, as found by the Trial Court, the 2016
Petition and the 2014 Petition involve identical subject matter. Specifically, both cases
involve issues regarding sentence credits and sentence calculation.

      As found by the Trial Court, all four elements of the doctrine of prior suit pending
were present at the time the Trial Court entered its order granting the State’s motion to


1
 This Court issued its Opinion in that case on September 28, 2017. By order entered February 15, 2018,
our Supreme Court denied Petitioner’s Rule 11 application for appeal. Mandate issued, and our
September 28, 2017 Opinion now is a final opinion.
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dismiss. The doctrine of prior suit pending applies to the 2016 Petition, and the 2016
Petition correctly was dismissed.

                                       Conclusion

       The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Fredrick Sledge, for which execution may issue, if necessary.




                                          _________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




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