Gary Wayne Garrett v. Tennessee Board of Parole
M2016-01738-COA-R3-CV
| Tenn. Ct. App. | Oct 10, 2017Background
- Petitioner Gary Wayne Garrett, serving an aggregate 119-year sentence with parole eligibility, was denied parole after a December 2, 2015 hearing; appeal denial was entered January 28, 2016.
- Tennessee law requires petitions for writ of certiorari challenging administrative decisions to be filed within 60 days of entry of the order.
- Garrett placed an unnotarized petition in the prison mailroom on March 28, 2016 (the 60th day); the Clerk returned it for notarization. He obtained notarization on April 5 and the court file-stamped the petition on April 12.
- The Board moved to dismiss for lack of jurisdiction as the verified petition was filed after the 60-day period; the trial court dismissed, reasoning the initial unverified filing did not confer jurisdiction and the later verified filing was untimely.
- Garrett sought to amend to add TDOC, claiming prison lockdown/denial of notary access caused the delay; grievance records later showed TDOC updated notary availability/policy. The trial court denied the motions; Garrett appealed.
- The Court of Appeals reversed and remanded for the trial court to consider, under Tenn. R. Civ. P. 6.02(2), whether Garrett’s late verified filing should be permitted based on excusable neglect and treated Garrett’s submissions as a request for extension (given his pro se status).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition was timely despite lacking notarization when deposited in prison mail on day 60 | Garrett: initial deposit on March 28 was timely under prison-mailbox rule; failure to notarize resulted from lockdown; initial filing should be treated as timely | Board: petition was not verified within 60 days; unverified filing cannot confer jurisdiction | Court: initial unverified filing was timely but must be verified; unverified petition is subject to dismissal for lack of jurisdiction |
| Whether the court could allow a late verified filing under Tenn. R. Civ. P. 6.02(2) for excusable neglect given prison lockdown and pro se status | Garrett: his April 5 notarized filing and affidavit explained excusable neglect (no access to notary); request should be treated as motion for extension | Board: the verified petition was filed after 60 days; court lacked jurisdiction to enlarge time because no timely request was filed before expiration | Court: trial court erred by not treating Garrett’s filings as a Rule 6.02(2) motion; remanded for the trial court to exercise discretion whether to permit late filing for excusable neglect (considering pro se status and factual record) |
Key Cases Cited
- Blackburn v. Blackburn, 270 S.W.3d 42 (Tenn. 2008) (standards for de novo review of legal issues)
- Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn. 1993) (appellate review principles for questions of law)
- Depew v. King’s, Inc., 276 S.W.2d 728 (Tenn. 1955) (unverified petitions must be dismissed)
- Blair v. Tennessee Bd. of Prob. & Parole, 246 S.W.3d 38 (Tenn. Ct. App. 2007) (petition for certiorari must be filed within 60 days; extension principles)
- Young v. Barrow, 130 S.W.3d 59 (Tenn. Ct. App. 2003) (courts afford pro se litigants leeway in construing filings)