                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                  Assigned on Briefs April 8, 2013

                  HENRY J. NAGORNY v. SHERIFF SCOTT LAYEL

                      Appeal from the Circuit Court for Grainger County
                            No. 8957II     Richard Vance, Judge


                     No. E2012-01705-COA-R3-CV-FILED-JULY 30, 2013


This appeal arises from a dispute over the calculation of jail time credits. Henry J. Nagorny
(“Nagorny”), an incarcerated individual, filed a petition for writ of mandamus in the Circuit
Court for Grainger County (“the Trial Court”) seeking to compel Sheriff Scott Layel to award
him jail behavior credits that allegedly were due him. The Trial Court dismissed Nagorny’s
petition sua sponte, stating that the calculation of credits is an administrative matter.
Nagorny filed this appeal. We hold that the Trial Court, stating no compelling substantive
basis for its decision, erred in dismissing Nagorny’s petition sua sponte. Therefore, we
reverse the judgment of the Trial Court and remand for proceedings consistent with our
Opinion.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which JOHN W. M CC LARTY
and T HOMAS R. F RIERSON, II, JJ., joined.

Henry Joshua Nagorny, pro se appellant.

Grainger County Sheriff Scott Layel, appellee.1




       1
           Appellee did not file a brief and does not appear to have taken any role in this case whatsoever.
                                  MEMORANDUM OPINION 2

                                              Background

              Nagorny apparently was convicted of a criminal offense in 2005, and
subsequently violated his probation a number of times. In April 2007, Nagorny appeared in
the Trial Court on a violation of probation and was ordered to serve 180 days in jail. In April
2009, Nagorny appeared again in the Trial Court on a violation of probation. Nagorny was
ordered to serve 250 days in jail. In July 2010, Nagorny appeared yet again in the Trial Court
on a probation violation. This time, Nagorny was ordered to serve the balance of his
sentence.

               Nagorny asserted in his petition that he was owed jail behavior credits, and he
took a number of actions seeking an adjustment of his credits. In July 2011, Nagorny sent
a Tennessee Department of Correction inmate inquiry form to the Records Office asking
about his credits. Nagorny received the following reply: “There is nothing we can do
regarding county jail behavior credits. You will need to contact the county for an adjustment
if you feel an error has been made–Returning all your paperwork.”

               In September 2011, Nagorny filed a petition for a declaratory order with the
Office of the Commissioner of the Department of Correction. In his petition, Nagorny
requested that he be credited with 104 allegedly missing jail behavior credits. Nagorny
attached to the petition a number of exhibits chronicling his efforts to get jail behavior
credits, including a request to the Director of Sentence Management Services, a request to
one Counselor Stanley, and, as already noted, an inquiry to the Records Office. Ultimately,
Nagorny’s petition was denied. In an October 2011 letter denying Nagorny’s petition, a
TDOC official wrote, in part:

        TOMIS shows that you have received jail credit (time served) for the
        following dates:
               - June 16-19, 2005 (4 days) (pretrial jail credit)
               - December 6, 2006 - June 4, 2007 (181 days)
               - February 5, 2009 - August 4, 2009 (181 days)
               - July 19, 2010 - through the date of this letter (480 days)


        2
          Rule 10 of the Rules of the Court of Appeals provides: “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.”

                                                    -2-
        Jail credit (time served) is not prisoner sentence reduction credit (PSRC). Any
        dates awarded as jail credit after the sentence imposed date (SID) is not
        pretrial jail credit (PTJC) and pretrial behavior credit (PTBC) is not
        authorized. Pretrial jail credit (PTJC) is credit for days incarcerated prior to
        the sentence imposed date (SID), which in case #4006 (ct 1 & 2) is June 20,
        2005.

        TOMIS shows that you have received all awarded jail credit. Your sentence
        structure is correct and your sentence expiration dates are correct.
        Respectfully, your petition is denied.

               In March 2012, Nagorny filed a petition for writ of mandamus in the Trial
Court against Grainger County Sheriff Scott Layel seeking to be awarded jail behavior
credits he allegedly was owed. In July 2012, Nagorny filed a motion for default judgment,
alleging that the Sheriff had failed to take any responsive action in this case. Later in July
2012, the Trial Court, sua sponte, entered its order. The Trial Court’s order appeared to be
based on a template form, and stated: “This cause came on to be heard on the . . .
Motion/Petition for calculation of jail credits . . . The Motion/Petition is dismissed . . .
calculation [of credits] is administrative matter. See attached.” Despite the “See attached”
language, no documents are attached to the Trial Court’s order. Shortly after entry of the
Trial Court’s order, Nagorny wrote a letter to the Trial Court clerk requesting the missing
material, stating “please send me a copy of the attached information . . . I never received the
info showing the grounds for dismissal.” Nevertheless, the record contains no documents
attached to the order in conjunction with the “See attached” language. Nagorny filed a timely
appeal to this Court.

               On appeal, we observed certain problematic features of the case. The appellee
apparently had played no role in the case. Moreover, it appeared the Trial Court had
dismissed Nagorny’s petition sua sponte, without stating any compelling reason. The Trial
Court’s order simply stated “calculation [of credits] is administrative matter. See attached.”
Yet, there was no “attached” material. We remanded the case pursuant to Tenn. Code Ann.
§ 27-3-128 (2000) in order for the Trial Court to supplement the record so we could
adequately review its judgment on appeal. We stated that this was to be done within 30 days
of the filing of the Opinion, allowing 15 days after that to transmit the record to this Court.
The previous Opinion was filed May 7, 2013. The Trial Court has not supplemented the
record with a new order explaining its reasons for dismissing Nagorny’s petition.3 In the
interest of judicial economy, we now will resolve this case on the merits.


       3
       Nagorny filed a motion in this Court seeking sanctions against the Trial Court for its failure to
supplement the record as directed. As a result of our Opinion, that motion is moot and thus denied.

                                                  -3-
                                           Discussion

              We consolidate Nagorny’s issues on appeal as follows: whether the Trial Court
erred in dismissing his petition sua sponte.

               This case presents an unusual set of circumstances. From the record before us,
it appears that the respondent/appellee has taken no role in this case at all. Moreover, it
appears that the Trial Court dismissed Nagorny’s petition sua sponte. Trial courts do, in fact,
have the power to dismiss actions sua sponte for failure to state a claim upon which relief
could be granted. Reid v. Power, No. E2012–02480–COA–R3–CV, 2013 WL 3282916, at
*3 (Tenn. Ct. App. June 26, 2013), perm. app. pending. That power, however, is limited.
Our Supreme Court has stated:

               On behalf of appellants it is insisted that the trial court had no authority,
       under the Tennessee Rules of Civil Procedure, to dismiss the complaints sua
       sponte and in the absence of a motion to dismiss filed pursuant to Rule 12.
       Although there is a split of authority on this subject, we are of the opinion that
       the trial court does have such authority, and that when he is of the opinion that
       the complaint fails to state a claim upon which relief may be granted, he may
       dismiss it, although such practice is not to be encouraged. In considering such
       action, the court should construe the complaint liberally in favor of the
       plaintiff, taking all of the allegations of fact therein as true.

Huckeby v. Spangler, 521 S.W.2d 568, 571 (Tenn. 1975).

               Our Supreme Court has discussed the standard for reviewing motions to
dismiss:

               A Rule 12.02(6) motion challenges only the legal sufficiency of the
       complaint, not the strength of the plaintiff's proof or evidence. The resolution
       of a 12.02(6) motion to dismiss is determined by an examination of the
       pleadings alone. A defendant who files a motion to dismiss “ ‘admits the truth
       of all of the relevant and material allegations contained in the complaint, but
       ... asserts that the allegations fail to establish a cause of action.’ ” Brown v.
       Tenn. Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn. 2010) (quoting Freeman
       Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 516 (Tenn. 2005)).

               In considering a motion to dismiss, courts “ ‘must construe the
       complaint liberally, presuming all factual allegations to be true and giving the
       plaintiff the benefit of all reasonable inferences.’ ” Tigg v. Pirelli Tire Corp.,

                                                -4-
       232 S.W.3d 28, 31–32 (Tenn. 2007) (quoting Trau–Med, 71 S.W.3d at 696).
       A trial court should grant a motion to dismiss “only when it appears that the
       plaintiff can prove no set of facts in support of the claim that would entitle the
       plaintiff to relief.” Crews v. Buckman Labs. Int'l, Inc., 78 S.W.3d 852, 857
       (Tenn. 2002). We review the trial court's legal conclusions regarding the
       adequacy of the complaint de novo.

Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)
(some internal citations omitted).

               Though the Trial Court had the authority to dismiss Nagorny’s petition on its
own motion, it failed to support its dismissal properly. The Trial Court’s July 2012 order was
exceedingly brief and cryptic. A sua sponte dismissal should be used with the utmost
discretion and restraint. As stated by our Supreme Court, “such practice is not to be
encouraged.” Huckeby, 521 S.W.2d at 571. In the instant case, there simply is no adequate
foundation stated by the Trial Court for its dismissal. Nagorny’s petition, which must be
construed liberally, alleged that he was owed certain jail credits and that the respondent
refused to give him these jail credits. With its final order unhelpfully stating only that
“calculation [of credits] is administrative matter. See attached,” there is no hint that the Trial
Court was justified in rendering a sua sponte dismissal. Such a rare and drastic step must
have ample justification. The Trial Court was given the opportunity to enter a new judgment
showing the foundation for its sua sponte dismissal, but the opportunity went unused. We
are not holding either that Nagorny’s petition is valid or that it should not be dismissed at
some point. We have no way of knowing from the record before us whether Sheriff Layel
is even the proper official to be named the respondent. Rather, all we are saying is that given
the sparse record, including the Trial Court’s order of dismissal, the Trial Court erred in its
sua sponte dismissal.

               With the final order contained in the record before us, we can discern no
sufficient basis for sua sponte dismissal of Nagorny’s petition. Therefore, we reverse the
judgment of the Trial Court and remand this case for further proceedings consistent with our
Opinion.




                                               -5-
                                        Conclusion

              The judgment of the Trial Court is reversed, and this cause is remanded to the
Trial Court for proceedings consistent with this Opinion. The costs on appeal are assessed
against the Appellee, Sheriff Scott Layel.


                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




                                            -6-
