Delo Brock v. Tennessee Department of Corrections

Opinion

DELO BROCK, )

)

Petitioner/Appellant, )

) Appeal No. ) 01-A-01-9503-CH-00078 VS. )

) Davidson Chancery ) No. 94-2046-III

TENNESSEE DEPARTMENT OF ) CORRECTION, )

Respondent/Appellee.

) ) FILED Nov. 13, 1995

COURT OF APPEALS OF TENNESSEE Cecil Crowson, Jr.

MIDDLE SECTION AT NASHVILLE Appellate Court Clerk

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

THE HONORABLE ROBERT S. BRANDT, CHANCELLOR

DELO BROCK, #88857 Middle Tennessee Reception Center 7177 Cockrill Bend Road Nashville, Tennessee 37209-1005 Pro Se/Petitioner/Appellant

CHARLES W. BURSON Attorney General and Reporter

PATRICIA C. KUSSMANN Assistant Attorney General 404 James Robertson Parkway Suite 2000 Nashville, Tennessee 37243 Attorney for Respondent/Appellee

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR: TODD, P.J., M.S. LEWIS, J.

MEMORANDUM OPINION1

The Chancery Court of Davidson County dismissed the appellant's

petition for declaratory judgment, filed pursuant to Tenn. Code Ann. § 4-5-223, to

review the Department of Correction's calculation of the credits due on his prison

sentences. The chancellor concluded that the appellant had failed to exhaust his

administrative remedies.

It appears from the record that the appellant first sought a declaratory

judgment from the Department of Correction. On May 18, 1994 the Department

advised him that the information he sought should be pursued through

departmental channels. The letter concluded by saying, "If you have already

attempted to resolve your questions following the above procedures, send this

office verifying documentation and your petition."

The parties later went through the same steps in which the appellant

was advised on July 7, 1984:

Should the above procedures prove unsuccessful, send the office verifying documentation and your petition. Petitions without verifying documentation will not be reviewed.

For the reasons stated in the initial paragraph, your declaratory order request is denied without prejudice and the petition is returned. Resubmit it with the appropriate verifying documentation and your request will be reviewed in accordance with the Uniform Administrative Procedures Act in T.C.A. § 5-4-101 et. seq.

1 Rule 10(b) of the Rules of the Court of Appeals reads as follows:

The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by mem orandum opinion when a form al opinion would have no pre cedentia l value. W hen a case is decided by mem orandum opinion it sha ll be designated "ME MO RA ND UM OP INIO N," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.

3

Even before receiving the Department's July 7, 1994 letter, the

appellant filed his petition in the chancery court.

Under Tenn. Code Ann. § 4-5-224(b) a declaratory judgment may be

sought in the chancery court only after the agency has refused to issue a

declaratory order. While it might be argued that the Department has refused to

issue the order by requiring the appellant to go through the administrative

channels, we think the better view of the situation is that the Department has

merely asked for verification that the appellant has been through all the steps that

make his petition ripe for consideration. By failing to provide that verification the

appellant has failed to exhaust his administrative remedies.

We affirm the decision of the chancery court and remand the cause

to that court for any further proceedings that may become necessary. Tax the

costs on appeal to the appellant.

____________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

_______________________________

SAMUEL L. LEWIS, JUDGE