IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE FILED January 21, 1999 JAMES COLWELL, ) C/A No. 01A01-9806-CH-00292 ) Cecil W. Crowson Plaintiff-Appellant, ) Appellate Court Clerk ) ) ) v. ) APPEAL AS OF RIGHT FROM THE ) DAVIDSON COUNTY CHANCERY COURT ) ) CHARLES TRAUGHBER, CHAIRMAN OF ) THE TENNESSEE BOARD OF PAROLES,) ) ) HONORABLE ELLEN HOBBS LYLE, Defendant-Appellee. ) CHANCELLOR
For Appellant For Appellee
JAMES COLWELL JOHN KNOX WALKUP Pro Se Attorney General and Reporter Nashville, Tennessee Nashville, Tennessee
JOHN R. MILES Attorney General’s Office Civil Rights and Claims Division Nashville, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1 This is an action filed by James Colwell seeking a new
parole hearing. The plaintiff appealed the trial court’s grant
of summary judgment to the defendant, Charles Traughber, Chairman
of the Tennessee Parole Board. The plaintiff, in his petition
for writ of certiorari, asserts that the Tennessee Parole Board
(“Board”) acted illegally, fraudulently, arbitrarily, and
capriciously in denying him parole. The trial court granted the
defendant’s motion for summary judgment upon finding that the
plaintiff had failed to carry his burden of overcoming the
properly-supported summary judgment motion of the defendant. On
this appeal, plaintiff essentially presents the following
question for our review: In granting summary judgment, did the
trial court err when it determined that no genuine issue of
material fact exists?
I.
The plaintiff is currently serving a 26-year sentence for
second degree murder and escape. At the plaintiff’s parole
hearing in June, 1996, a hearing officer recommended that parole
be denied because of the seriousness of the offense and the
results of the plaintiff’s psychological evaluation. The Board
adopted this recommendation. After exhausting his administrative
remedies, the plaintiff then filed a petition for writ of
certiorari in the trial court.
The plaintiff asserts that the Board acted illegally,
fraudulently, arbitrarily, and capriciously in making its
decision, by considering three different versions of the Facts of
2 Offense Report, along with black and white photographs that he
claims unfairly depict the crime scene. The plaintiff further
contends that the Board abused its discretion by relying on an
incorrect criminal history and by preventing him from offering
evidence at the hearing.
The plaintiff filed various motions seeking to compel
production of documents relating to his original conviction.
These motions were denied by the trial court as being outside the
scope of the writ of certiorari.1
The defendant filed a motion for summary judgment
asserting that there are no genuine issues of material fact. He
supported his motion with an affidavit of the Custodian of the
Records of the Board; the transcript of the June 4, 1996, parole
hearing; the Board’s office files regarding the plaintiff; and a
statement of undisputed facts.
The plaintiff responded to this motion with a motion to
dismiss the defendant’s motion for summary judgment and/or enter
summary judgment in his favor. He did not support his response
with any affidavits or additional evidence.
The trial court granted the defendant’s motion for
summary judgment based on the plaintiff’s failure to show that a
genuine issue of material fact existed. This appeal followed.
1 This issue is not before us on appeal .
3 4 II.
Our standard of review on a grant of summary judgment
is well-settled. “Our inquiry involves purely a question of law;
therefore, we review the record without a presumption of
correctness to determine whether the absence of genuine issues of
material facts entitle the defendant to judgment as a matter of
law.” Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). See
also McCarley v. West Quality Food Service, 948 S.W.2d 477 (Tenn.
1997); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Byrd v.
Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Hardesty v. Service
Merchandise Co., Inc., 953 S.W.2d 678, 684 (Tenn.App. 1997). The
moving party -- in this case, the defendant -- has the initial
burden of producing competent, material evidence showing that
there is no genuine issue as to any material fact. Byrd, 847
S.W.2d at 211. This burden may be met by either affirmatively
negating an essential element of the nonmoving party’s claim or
by conclusively establishing an affirmative defense. Id. at 215
n.5.
If the moving party successfully negates an essential
element of a claim, the nonmoving party must then establish that
there are disputed material facts creating genuine issues that
must be resolved by the trier of fact. Id. at 215. The
nonmoving party cannot rely on his pleadings to overcome a
properly-supported motion for summary judgment. Id.; Robinson,
952 S.W.2d at 426; McCarley, 948 S.W.2d at 478-79; Rule 56.06,
Tenn.R.Civ.P. The nonmoving party may contradict the factual
5 predicate of the motion by presenting competent and admissible
material evidence by:
(1) pointing to evidence overlooked or ignored by the moving party that establishes a material factual dispute, (2) by rehabilitating the evidence attacked in the moving party’s papers, (3) by producing additional evidence showing the existence of a genuine issue for trial, or (4) submitting an affidavit explaining why further discovery is necessary as provided for in Tenn.R.Civ.P., Rule 56.06.
Robinson, 952 S.W.2d at 426 n.4; McCarley, 948 S.W.2d at 479;
Byrd, 847 S.W.2d at 215 n.6. In addition, the evidence must be
viewed by the court in the light most favorable to the nonmoving
party, and all inferences must be drawn in favor of the nonmoving
party. Byrd, 847 S.W.2d at 210-211. Summary judgment should be
granted only when the facts and conclusions permit a reasonable
person to reach only one ultimate conclusion -- that the moving
party is entitled to a judgment as a matter of law. Robinson,
952 S.W.2d at 426; Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995).
III.
The transcript of the parole hearing -- a supporting
document to the defendant’s motion for summary judgment --
negates the plaintiff’s claim that the Board acted illegally,
fraudulently, arbitrarily, and capriciously. The transcript
establishes that the plaintiff was afforded an opportunity to
present evidence at the parole hearing. Further, the transcript
6 reveals that the black and white photographs were not critical to
the Board’s decision to deny parole. The one piece of
information cited by the plaintiff as being prejudicial to him2
was specifically rejected by the hearing officer, and there is no
evidence in the transcript that the Board relied on invalid
convictions in making its decision to deny parole.3 It is clear
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IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE FILED January 21, 1999 JAMES COLWELL, ) C/A No. 01A01-9806-CH-00292 ) Cecil W. Crowson Plaintiff-Appellant, ) Appellate Court Clerk ) ) ) v. ) APPEAL AS OF RIGHT FROM THE ) DAVIDSON COUNTY CHANCERY COURT ) ) CHARLES TRAUGHBER, CHAIRMAN OF ) THE TENNESSEE BOARD OF PAROLES,) ) ) HONORABLE ELLEN HOBBS LYLE, Defendant-Appellee. ) CHANCELLOR
For Appellant For Appellee
JAMES COLWELL JOHN KNOX WALKUP Pro Se Attorney General and Reporter Nashville, Tennessee Nashville, Tennessee
JOHN R. MILES Attorney General’s Office Civil Rights and Claims Division Nashville, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1 This is an action filed by James Colwell seeking a new
parole hearing. The plaintiff appealed the trial court’s grant
of summary judgment to the defendant, Charles Traughber, Chairman
of the Tennessee Parole Board. The plaintiff, in his petition
for writ of certiorari, asserts that the Tennessee Parole Board
(“Board”) acted illegally, fraudulently, arbitrarily, and
capriciously in denying him parole. The trial court granted the
defendant’s motion for summary judgment upon finding that the
plaintiff had failed to carry his burden of overcoming the
properly-supported summary judgment motion of the defendant. On
this appeal, plaintiff essentially presents the following
question for our review: In granting summary judgment, did the
trial court err when it determined that no genuine issue of
material fact exists?
I.
The plaintiff is currently serving a 26-year sentence for
second degree murder and escape. At the plaintiff’s parole
hearing in June, 1996, a hearing officer recommended that parole
be denied because of the seriousness of the offense and the
results of the plaintiff’s psychological evaluation. The Board
adopted this recommendation. After exhausting his administrative
remedies, the plaintiff then filed a petition for writ of
certiorari in the trial court.
The plaintiff asserts that the Board acted illegally,
fraudulently, arbitrarily, and capriciously in making its
decision, by considering three different versions of the Facts of
2 Offense Report, along with black and white photographs that he
claims unfairly depict the crime scene. The plaintiff further
contends that the Board abused its discretion by relying on an
incorrect criminal history and by preventing him from offering
evidence at the hearing.
The plaintiff filed various motions seeking to compel
production of documents relating to his original conviction.
These motions were denied by the trial court as being outside the
scope of the writ of certiorari.1
The defendant filed a motion for summary judgment
asserting that there are no genuine issues of material fact. He
supported his motion with an affidavit of the Custodian of the
Records of the Board; the transcript of the June 4, 1996, parole
hearing; the Board’s office files regarding the plaintiff; and a
statement of undisputed facts.
The plaintiff responded to this motion with a motion to
dismiss the defendant’s motion for summary judgment and/or enter
summary judgment in his favor. He did not support his response
with any affidavits or additional evidence.
The trial court granted the defendant’s motion for
summary judgment based on the plaintiff’s failure to show that a
genuine issue of material fact existed. This appeal followed.
1 This issue is not before us on appeal .
3 4 II.
Our standard of review on a grant of summary judgment
is well-settled. “Our inquiry involves purely a question of law;
therefore, we review the record without a presumption of
correctness to determine whether the absence of genuine issues of
material facts entitle the defendant to judgment as a matter of
law.” Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). See
also McCarley v. West Quality Food Service, 948 S.W.2d 477 (Tenn.
1997); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Byrd v.
Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Hardesty v. Service
Merchandise Co., Inc., 953 S.W.2d 678, 684 (Tenn.App. 1997). The
moving party -- in this case, the defendant -- has the initial
burden of producing competent, material evidence showing that
there is no genuine issue as to any material fact. Byrd, 847
S.W.2d at 211. This burden may be met by either affirmatively
negating an essential element of the nonmoving party’s claim or
by conclusively establishing an affirmative defense. Id. at 215
n.5.
If the moving party successfully negates an essential
element of a claim, the nonmoving party must then establish that
there are disputed material facts creating genuine issues that
must be resolved by the trier of fact. Id. at 215. The
nonmoving party cannot rely on his pleadings to overcome a
properly-supported motion for summary judgment. Id.; Robinson,
952 S.W.2d at 426; McCarley, 948 S.W.2d at 478-79; Rule 56.06,
Tenn.R.Civ.P. The nonmoving party may contradict the factual
5 predicate of the motion by presenting competent and admissible
material evidence by:
(1) pointing to evidence overlooked or ignored by the moving party that establishes a material factual dispute, (2) by rehabilitating the evidence attacked in the moving party’s papers, (3) by producing additional evidence showing the existence of a genuine issue for trial, or (4) submitting an affidavit explaining why further discovery is necessary as provided for in Tenn.R.Civ.P., Rule 56.06.
Robinson, 952 S.W.2d at 426 n.4; McCarley, 948 S.W.2d at 479;
Byrd, 847 S.W.2d at 215 n.6. In addition, the evidence must be
viewed by the court in the light most favorable to the nonmoving
party, and all inferences must be drawn in favor of the nonmoving
party. Byrd, 847 S.W.2d at 210-211. Summary judgment should be
granted only when the facts and conclusions permit a reasonable
person to reach only one ultimate conclusion -- that the moving
party is entitled to a judgment as a matter of law. Robinson,
952 S.W.2d at 426; Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995).
III.
The transcript of the parole hearing -- a supporting
document to the defendant’s motion for summary judgment --
negates the plaintiff’s claim that the Board acted illegally,
fraudulently, arbitrarily, and capriciously. The transcript
establishes that the plaintiff was afforded an opportunity to
present evidence at the parole hearing. Further, the transcript
6 reveals that the black and white photographs were not critical to
the Board’s decision to deny parole. The one piece of
information cited by the plaintiff as being prejudicial to him2
was specifically rejected by the hearing officer, and there is no
evidence in the transcript that the Board relied on invalid
convictions in making its decision to deny parole.3 It is clear
from the transcript that the decision by the Board to deny parole
was based on the seriousness of the offense and the plaintiff’s
psychological report.
The record establishes that the defendant has satisfied
his burden of affirmatively negating essential elements of the
plaintiff’s claims, thus triggering the plaintiff’s burden to
produce countervailing evidence. See McCarley, 948 S.W.2d at
479.
In reviewing the plaintiff’s response to the motion for
summary judgment, we note that he failed to carry his burden
under Byrd. He relied solely upon his pleadings and did not
point to any evidence to establish that there are material
factual disputes; nor has the plaintiff rehabilitated the facts
attacked by the defendant or provided additional evidence
establishing the existence of genuine issues for trial. In
short, the plaintiff has failed to carry his burden under Rule
56.06, Tenn.R.Civ.P.
2 The plaintiff claims that the Facts of Offense Report states that he used a weapon in the commission of the crime. 3 The trial court, in denying plaintiff’s motion for a new hearing, found that the Board made its decision without being aware of any problems with the Facts of Offense Report or invalid convictions.
7 8 IV.
For the foregoing reasons, we conclude that the
defendant has demonstrated that there are no genuine issues of
material fact, and, further, that he is entitled to a judgment as
a matter of law. Accordingly, the judgment of the trial court is
affirmed. This case is remanded to the court below for the
collection of costs assessed there. The costs of this appeal are
taxed against the appellant.
_________________________ Charles D. Susano, Jr., J.
CONCUR:
________________________ Houston M. Goddard, P.J.
________________________ Herschel P. Franks, J.