author: FRANK F. DROWOTA, III, C.J.,

text:
    Roger L. HICKMAN v. STATE of Tennessee.
    Supreme Court of Tennessee.
    May 5, 2004 Session.
    Sept. 22, 2004.

      Douglas A. Trant, Knoxville, for the appellant, Roger L. Hickman.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General; Randall E. Nichols, District Attorney General; and Zane M. Scar-lett, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

FRANK F. DROWOTA, III, C.J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

We granted Roger L. Hickman permission to appeal to consider whether the trial court and Court of Criminal Appeals erred in dismissing his habeas corpus petition. Hickman’s petition, prepared with the aid of counsel, alleged that his. 1986 misdemeanor conviction, for which he received a ten-day suspended sentence, is void because the judgment does not affirmatively indicate that Hickman was represented by counsel or that he waived his right to counsel. We hold that the trial court and Court of Criminal Appeals properly dismissed the petition. The petition failed to comply with the prescribed statutory form, failed to allege that Hickman is “imprisoned or restrained of his liberty,” as required by Tennessee Code Annotated section 29-21-101 (2000), and failed to allege grounds for habeas corpus relief. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History

On June 6, 1986, the petitioner, Roger L. Hickman, pleaded guilty in the Knox County General Sessions Court to possession of marijuana and received a ten-day suspended sentence and a fifty dollar fine. The certified copy of the judgment does not indicate whether Hickman was represented by counsel or waived his right to counsel that day.

Almost sixteen years later, on February 25, 2002, Hickman, by and through counsel, filed a habeas corpus petition in the Knox County Criminal Court challenging the validity of his 1986 conviction. Hickman’s petition asserted that the 1986 conviction was void because the judgment did not affirmatively recite whether Hickman was represented by counsel or waived counsel. The petition sought to set aside the 1986 conviction “so [that] it may not be considered in a case in U.S. District Court.” Finding that the grounds alleged, if tme, rendered the conviction voidable, not void, the trial court dismissed the ha-beas corpus petition. Alternatively, the trial court concluded that, if treated as a petition for post-conviction relief, the petition was time-barred by the statute of limitations.

Hickman appealed, and in a split decision, the Court of Criminal Appeals affirmed the trial court’s judgment. Emphasizing that the ten-day suspended sentence on the 1986 conviction had expired long before the habeas corpus petition was filed, the majority concluded that Hickman was not “imprisoned or restrained of his liberty” and therefore was not entitled to habeas corpus relief. The majority also pointed out that Hickman’s petition failed to comply with the statutory form and failed to provide statutorily mandated information. See TenmCode Ann. § 29-21-107 (2000). Finally, in a footnote, the majority indicated that if the defendant is presently in federal custody, as he alleged in another case attacking his 1986 conviction, then he is barred from obtaining habeas corpus relief by Tennessee Code Annotated section 29-21-102, which provides that “[pjersons committed or detained by virtue of process issued by a court of the United States, or a judge thereof ... are not entitled to the benefits of this writ.”

We granted the defendant’s application for permission to appeal and now affirm the judgment of the lower courts dismissing the habeas corpus petition.

II. Standard of Review

The determination of whether ha-beas corpus relief should be granted is a question of law. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn.2001). Accordingly, our review is de novo with no presumption of correctness accorded to the courts below. Id.

III. Analysis

In Tennessee, two distinct procedural avenues are available to collaterally attack a final judgment in a criminal case — habeas corpus and post-conviction petitions. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.1999); Potts v. State, 833 S.W.2d 60, 62 (Tenn.1992). The right to seek ha-beas corpus relief is guaranteed by article I, section 15 of the Tennessee Constitution. The procedures governing habeas corpus petitions are codified at Tennessee Code Annotated sections 29-21-101 through 29-21-130. This Court has previously acknowledged that “the procedural provisions of the habeas corpus statutes are mandatory and must be followed scrupulously.” Archer v. State, 851 S.W.2d 157, 165 (Tenn.1993) (citing Bateman v. Smith, 183 Tenn. 541, 194 S.W.2d 336, 337 (1946)). Although there is no habeas corpus statute of limitations, the grounds upon which habeas corpus relief will be granted are narrow. Dixon v. Holland, 70 S.W.3d 33, 36 (Tenn.2002); See State v. Ritchie, 20 S.W.3d 624, 630 (Tenn.2000); Archer, 851 S.W.2d at 164. Habeas corpus relief is proper only if the petition establishes that the challenged judgment is void, as opposed to merely voidable. Taylor, 995 S.W.2d at 83; Potts, 833 S.W.2d at 62. A judgment is void “only when ‘[i]t appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered’ that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has expired.” Ritchie, 20 S.W.3d at 630 (quoting Archer, 851 S.W.2d at 164) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37, 1868 WL 2122 (1868)). Furthermore, a sentence “imposed in direct contravention of a statute ... is void and illegal.” Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn.2000). When the habeas corpus petition fails to demonstrate that the judgment is void, a trial court may properly dismiss the petition without a hearing. Tenn.Code Ann. § 29-21-109 (2000); Dixon, 70 S.W.3d at 36.

A petition for post-conviction relief is the procedural avenue for attacking voidable judgments. Taylor, 995 S.W.2d at 83; State v. McClintock, 732 S.W.2d 268, 272 (Tenn.1987). Recognizing the narrow scope of habeas corpus relief, in 1967 the Tennessee General Assembly enacted the Post-Conviction Procedures Act. Post-conviction petitioners, unlike habeas corpus petitioners, may challenge convictions or sentences that are either void or voidable because of the abridgment of constitutional rights. Tenn.Code Ann. § 40-30-103 (2003); Taylor, 995 S.W.2d at 83; Potts, 833 S.W.2d at 62. “A voidable conviction or sentence is one which is facially valid and requires the introduction of proof beyond the face of the record or judgment to establish its invalidity.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn.1998); Archer, 851 S.W.2d at 161-64). A one-year statute of limitations applies to post-conviction petitions, Tenn.Code Ann. § 40-30-102 (2003). Having briefly reviewed these distinct procedural avenues, we will address the issues raised in this appeal.

A. Procedural Requirements for Petition for Writ of Habeas Corpus

Tennessee Code Annotated section 29-21-107(a) provides that habeas corpus petitions must be signed and verified by affidavit. This statute further requires the petition to state:

(1) That the person in whose behalf the writ is sought, is illegally restrained of liberty, and the person by whom and place where restrained, mentioning the name of such person, if known, and, if unknown, describing the person with as much particularity as practicable;
(2) The cause or pretense of such re- . straint according to the best information of the applicant, and if it be by virtue of any legal process, a copy thereof shall be annexed, or a satisfactory reason given for its absence;,
(3) That the legality of the restraint has not already been adjudged upon a prior proceeding of the same character, to the best of the applicant’s knowledge and belief; and
(4) That it is first application for the writ, or, if a previous application has been made, a copy of the petition and proceedings thereon shall be produced, or satisfactory reasons be given for the failure so to do.

TenmCode Ann. § 29-21-107(b) (2000). Hickman’s petition failed to comply with this statute. The petition, prepared and filed by counsel on Hickman’s behalf, states in its entirety as follows:

Comes the Petitioner, Roger L. Hickman, by and through counsel, Douglas A. Trant, to petition for a writ of habeas corpus concerning his conviction in the Knox County Sessions Court for Knox County, Tennessee in case number 72333 G wherein he was convicted of simple possession of marijuana. A certified copy of the conviction is attached and is void on its face because the conviction does not state that he had counsel nor did he waive counsel. Waiver of the constitutional right of counsel cannot be presumed from a silent record. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) and Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980).

As the Court of Criminal Appeals noted, Hickman’s petition was not verified by affidavit, failed to name the restraining authority and the place of restraint, failed to state whether the legality of the restraint had been previously adjudicated, and failed to state whether previous applications for the writ had been made. However, the State did not move to dismiss the petition for failure to comply with Code section 107, nor did the trial court dismiss the petition for procedural noncompliance.

As previously explained, the procedural requirements of the habeas corpus statutes “are mandatory and must be followed scrupulously.” Archer, 851 S.W.2d at 165; Bateman, 194 S.W.2d at 337. A habeas corpus court may properly choose to dismiss a petition for failing to comply with the statutory procedural requirements; however, dismissal is not required. The habeas corpus court may instead choose to afford the petitioner an opportunity to comply with the procedural requirements, or the habeas corpus court may choose to adjudicate the petition on its merits. See Tenn.Code Ann. § 29-21-109 (2000) (“If, from the showing of the petitioner, the plaintiff would not be entitled to any relief, the writ may be refused, the reasons for such refusal being briefly endorsed upon the petition, or appended thereto.”) (emphasis added).

In this case, the State did not move to dismiss Hickman’s petition for procedural noncompliance even though it was prepared and filed by counsel. Likewise, the trial court chose to adjudicate the petition on its merits and certainly acted within its discretion in doing so. Thus, we decline to base our decision to dismiss the petition upon the petitioner’s failure to comply with the statutory procedure and will instead consider the petition on its merits.

B. Restraint of Liberty

Hickman argues that the lower courts erred in concluding that he is not entitled to habeas corpus relief because he is neither “imprisoned” nor “restrained of liberty” by his 1986 conviction. Hickman asserts that the use of his 1986 conviction to enhance his federal sentence restrains his liberty. We disagree.

Tennessee Code Annotated section 29-21-101 (2008), provides that “[a]ny person imprisoned or restrained of liberty, under any pretense whatsoever,

... may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint” (emphasis added.) The statute does not define the terms “imprisoned” and ■ “restrained of liberty.” When construing statutes, this Court ascertains and effectuates legislative intent. Dixon, 70 S.W.3d at 37. Legislative intent is derived from the plain and ordinary meaning of the statutory language. Id. When the meaning of the language is unclear, the entire statutory scheme must be examined to determine legislative intent and purpose. Id. The ordinary meaning of the term “imprisoned” is clear. To “imprison” is “to confine (a person) in prison.” Black’s Law Dictionary 760 (7th ed.1999). Plainly, then, “imprisoned” in this statute refers to actual physical confinement or detention.

Unlike “imprisonment,” the meaning of “restrained of liberty” is not limited to physical" confinement or detention. The United States Supreme Court has stated: “History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a [person’s] liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.” Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). This Court has also recognized that a person may be “restrained of liberty” and entitled to seek habeas corpus relief even when not physically confined. State ex rel Dillehay v. White, 217 Tenn. 524, 398 S.W.2d 737 (1966). Dillehay challenged the legality of her restraint under a judgment committing her to the Maury County jail to work off the fine and costs imposed in her criminal case. Id. at 738. The trial judge dismissed the petition but released Dille-hay on her own recognizance pending appeal; . however, the bond prohibited Dille-hay from leaving Maury County. Id. Dillehay appealed, and the State argued that, because Dillehay was no longer physically confined in jail, her appeal was moot. Id. This Court disagreed, stating:

Although she is not being held in jail, she is, nevertheless, restricted in her liberty to Maury County pending this appeal and is subject to immediate confinement should her appeal be dismissed. By grace of the trial judge she is now at liberty, but upon her violation of her confinement to Maury County she could be placed in jail again. Habeas corpus, if otherwise proper, can reach this constructive confinement.

Id. (citing Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963)). Thus, Dillehay stands for the proposition that, when the challenged judgment itself imposes a restraint upon the petitioner’s freedom of action or movement, the petitioner is entitled to seek habeas corpus relief, even though the petitioner is not physically confined or detained. See also Jones, 371 U.S. at 243, 83 S.Ct. 373 (“While petitioner’s parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom .... ”); Wales v. Whitney, 114 U.S. 564, 572, 5 S.Ct. 1050, 29 L.Ed. 277 (1885) (“There must be [either] actual confinement or the present means of enforcing it.”); 39 Am. Jur.2d Habeas Corpus, § 17 (1999) (“Any restraint that precludes freedom of action ... is sufficient, notwithstanding lack of confinement in a jail or prison, as, for example, a restraint that consists in forbidding a man to leave the city and keeping him under the surveillance of an officer, or the restraint that exists by virtue of the conditions of parole or probation.”)

However, when the restraint on a petitioner’s liberty is merely a collateral consequence of the challenged judgment, habeas corpus is not an appropriate avenue for seeking relief. In Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), the United States Supreme explained this distinction.

The question presented by this case is whether a habeas petitioner remains “in custody” under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted. We hold that he does not. While we have very liberally construed the “in custody” requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction. Since almost all states have habitual offender statutes, ... a contrary ruling would mean that a petitioner whose sentence has completely expired could nonetheless challenge the conviction for which it was imposed at any time on federal habeas. This would read the “in custody” requirement out of the statute ....

Id. at 492, 109 S.Ct. 1923. Even though the language of the federal habeas corpus statute differs somewhat from the language of the Tennessee statute, we agree with Maleng’s analysis on this issue. Indeed, this analysis is consistent with the history and usage of the writ of habeas corpus, prior decisions of this court, and the overall statutory scheme governing the writ of habeas corpus in Tennessee. Accordingly, we hold that a person is not “restrained of liberty” for purposes of the habeas corpus statute unless the challenged judgment itself imposes a restraint upon the petitioner’s freedom of action or movement. Use of the challenged judgment to enhance the sentence imposed on a separate conviction is not a restraint of liberty sufficient to permit a habeas corpus challenge to the original conviction long after the sentence on the original conviction has expired.

Hickman has not alleged that he presently is serving the ten-day suspended sentence imposed for his 1986 conviction in the Knox County General Sessions Court. Thus, Hickman clearly is not “imprisoned” under the challenged judgment. -Furthermore, Hickman is not “restrained of liberty” as a direct consequence of the 1986 judgment. Indeed, the ten-day sentence has long ago expired, and the General Sessions judgment does not impose any further restraint upon his physical movement or action. Although this 1986 conviction may have been used to enhance a federal sentence Hickman is serving, enhancement is merely a collateral consequence of the 1986 judgment. Thus, Hickman is not “restrained of liberty” for purposes of the habeas corpus statute. Furthermore, as explained below, the trial court correctly held that Hickman’s 1986 judgment is not void on its face.

C. Void or Voidable

Hickman’s petition alleges that the 1986 judgment is void because it does not affirmatively indicate that he was represented by counsel or that he waived his right to counsel when he pleaded guilty to misdemeanor possession of marijuana. The State responds that the judgment is not facially invalid because the judgment does not show that the convicting court was without jurisdiction or authority to accept the plea and to sentence the defendant. We agree with the State.

As previously indicated, “the grounds upon which habeas corpus relief will be granted are narrow.” Dixon, 70 5.W.3d at 36. Habeas corpus is a vehicle for attacking a judgment that is void on its face. Ritchie, 20 S.W.3d at 630. “‘[A] void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment or because the defendant’s sentence has expired.’ ” Id. (quoting Taylor, 995 S.W.2d at 83). In contrast, a voidable judgment “is facially valid and requires the introduction of proof beyond the face of the record or judgment to establish its invalidity.” Id. at 633. Thus, “[i]n all cases where a petitioner must introduce proof beyond the record to establish the invalidity of his conviction, then that conviction by definition is merely voidable, and a Tennessee court cannot issue the Writ of habeas corpus under such circumstances.” Ritchie, 20 S.W.3d at 633.

The judgment in this case is not facially invalid because the judgment does not show that the convicting court was without jurisdiction or authority to accept the plea and to sentence Hickman. The copy of the judgment attached to Hickman’s petition demonstrates that the General Sessions Court had both subject matter and personal jurisdiction. The warrant charged Hickman with possession of marijuana on May 5, 1986, a misdemeanor offense over which the General Sessions Court had subject matter jurisdiction. Because the General Sessions Court is a court of limited jurisdiction, jurisdictional facts must affirmatively appear upon the record. See Ritchie, 20 S.W.3d at 631 n. 14; McClintock, 732 S.W.2d at 270-71. Here, those facts appear: the warrant reflects that Hickman entered a written guilty plea, requested a trial on the merits in General Sessions Court, and expressly waived his right to indictment, presentment, grand jury investigation, and jury trial. Because the judgment plainly states the essential facts establishing the court’s jurisdiction, the judgment is entitled to a presumption of regularity. Id.

The judgment’s silence as to whether the petitioner was represented by counsel or waived the right to counsel does not defeat the presumption of regularity and render the judgment void. Prior decisions of this Court clearly indicate that the presumption of regularity applies unless a defect appears on the face of the judgment. For example, in McClintock, this Court noted that, a conviction should be considered void on its face when “the record affirmatively reveal[s] that the defendant had neither been represented by counsel nor waived his right to counsel _” 732 S.W.2d at 273 (citing Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980)) (emphasis added). We pointed out that the Post-Conviction Procedures Act is the proper avenue for challenging facially valid judgments. Id. at 274. Similarly, in Ritchie, this Court denied habeas corpus relief and held that a conviction is void on its face only when the face of the judgment or the record of the proceedings “clearly and indisputably” reflects that the court of conviction lacked territorial jurisdiction. 20 S.W.3d at 633. Thus, this Court’s prior decisions stand for the proposition that a judgment is entitled to a presumption of regularity and is not void unless a defect appears on the face of the judgment. These prior decisions do not support Hickman’s argument that a judgment is facially void unless it affirmatively recites that the defendant was represented by counsel or waived the right to counsel.

Furthermore, we have considered the cases Hickman relies upon and find them readily distinguishable. For example, in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), the record affirmatively revealed that the defendant had neither been represented by counsel nor waived the right to counsel. Id. at 223, 100 S.Ct. 1585; McClintock, 732 S.W.2d at 273 (noting this distinction). Similarly, in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the evidence of the prior Tennessee conviction included two “records,” one reciting that the accused appeared “ “without Counsel,’ ” and the other making no reference to counsel. Id. at 112, 88 S.Ct. 258. Given these two records, one affirmatively reciting that the defendant did not have counsel and the other silent as to whether the defendant had counsel or waived counsel, the Supreme Court concluded that the “records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void.” Id. at 114, 88 S.Ct. 258 (emphasis added). Centrally important to the Burgett holding, then, was the affirmative statement that the defendant had appeared “without Counsel.” In light of this facial defect, the United States Supreme Court simply refused to presume a valid waiver of the right to counsel from the other Tennessee record, which was silent as to counsel.

The limited scope of the Burgett holding was confirmed by the Supreme Court’s decision in Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). In Parke a state prisoner sought to vacate his Kentucky sentence, arguing that the prior convictions used to enhance his sentence were not knowingly and voluntarily entered because he had not been advised of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Certified copies of the prior convictions did not affirmatively show that Raley had been advised of his Boykin rights, and transcripts of the plea proceedings were not available. In rejecting Ra-ley’s claim, the Court first distinguished Boykin, which stands for the proposition that the government must ordinarily create a record affirmatively showing that a guilty plea was knowing and voluntary, explaining:

Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. Respondent, however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boy-kin’s presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the “presumption of regularity” that attaches to final judgments, even when the question is waiver of constitutional rights.

Parke, 506 U.S. at 29, 113 S.Ct. 517 (internal citations omitted). The Court squarely rejected Raley’s claim that Burgett supported “the proposition that every previous conviction used to enhance punishment is ‘presumptively void’ if waiver of [any] claimed constitutional right does not appear from the face of the record.” Parke, 506 U.S. at 31, 113 S.Ct. 517. The Court refused to “read the decision so broadly” and limited Burgett to its proper historical and procedural context, stating: .

[a]t the time the prior conviction at issue in Burgett was entered, state criminal defendants’ federal constitutional right to counsel had not yet been recognized, and so it was reasonable to presume that the defendant had not waived a right he did not possess.... [T]he same cannot be said about a record that, by virtue of its unavailability on collateral review, fails to show compliance with the well-established Boykin requirements.

Id. at 31, 113 S.Ct. 517. The Court concluded:

On collateral review, we think it defies logic to presume from the mere unavailability of a transcript ... that the defendant was not advised of his rights. In this situation, Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentencing enhancement was validly obtained.

Id. at 30, 113 S.Ct. 517. Thus, neither Baldasar nor Burgett support Hickman’s claim that a judgment is void unless it affirmatively recites that the defendant had counsel or waived counsel. The United States Supreme Court’s decision in Parke supports the opposite conclusion. See also United States v. Jones, 332 F.3d 688 (3rd Cir.2003); United States v. Gray, 177 F.3d 86 (1st Cir.1999); Nicely v. Commonwealth, 25 Va.App. 579, 490 S.E.2d 281 (1997). These decisions affirm the presumption of regularity that has long been applied in habeas corpus proceedings in Tennessee. Furthermore, our research has revealed no Tennessee habeas corpus case holding that a judgment is void unless it fails to affirmatively recite that the defendant had counsel or waived the right to counsel. We also decline to adopt such a rule and instead reaffirm the well-settled principle that a judgment is void only if the face of the judgment or the record of the proceedings clearly reflects that the court lacked jurisdiction to render the judgment or that the sentence has expired. Ritchie, 20 S.W.3d at 633.

Returning to the record in this case, we conclude that the judgment is not void on its face and is instead entitled to the presumption of regularity. The judgment contains a blank line where defense counsel is ordinarily listed, and the pre-printed “Waiver of Attorney” was not signed by the defendant. This judgment does not clearly reflect that the defendant was denied the right to counsel. The judgment is merely silent. Additional information outside the judgment would be needed to establish that Hickman in fact was not represented by counsel. As we previously stated, where additional proof is needed, the judgment is at most voidable, rather than void, and a post-conviction petition is the proper method for attacking a voidable judgment. Taylor, 995 S.W.2d at 83; McClintock, 732 S.W.2d at 272. Thus, Hickman is not entitled to habeas corpus relief. Furthermore, the trial court correctly concluded that, if viewed as a post-conviction petition, Hickman’s petition is time-barred by the statute of limitations. See TenmCode Ann. § 40-30-102 (1990) (repealed 1995); Abston v. State, 749 S.W.2d 487 (Tenn.Crim.App.1988).

IV. Conclusion

For these reasons, Hickman is not entitled to relief on his habeas corpus claim. Accordingly, the judgment of the Court of Criminal Appeals is affirmed. Costs of this appeal are taxed to the petitioner, Roger L. Hickman, for which execution may issue if necessary.

      . Article I, section 15 of the Tennessee Constitution provides that "the privilege of the writ of Habeas Corpus shall not be suspended, unless when in case of rebellion or invasion, the General Assembly shall declare the public safety requires it.”

      . See 1967 Tenn. Pub. Acts ch. 310. The 1967 Act was amended in its entirety in 1995 by the General Assembly, See 1995 Tenn. Pub. Acts. ch. 207, 81, and is now codified at Tennessee Code Annotated sections 40-30-101 through 40-30-122.

      . See State ex rel. Goss v. Heer, 220 Tenn. 36, 413 S.W.2d 688, 693 (1967) (stating that "it is proper to dismiss a petition when the petitioner fails to comply with the mandatory provisions of the [the statute]”); Johnson v. Russell, 218 Tenn. 443, 404 S.W.2d 471, 473 (1966) ("Therefore, purely for this technical reason [failure to annex a copy of the legal process or judgment] the petition for habeas corpus should be denied ...."); State ex rel Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310, 313 (1966) (noting that the petitioner had failed to comply with the mandatory provisions of the statute, but resolving the case on the merits); State ex rel. Wood v. Johnson, 216 Tenn. 531, 393 S.W.2d 135, 136 (1965) (stating that "the failure to comply with [the statute] may be grounds for dismissing the petition”); State ex rel. Allen v. Johnson, 217 Tenn. 28, 394 S.W.2d 652, 653 (1965) (stating that "the trial judge was correct in dismissing the petition for failure to comply with [the statute]”); State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 381 S.W.2d 290, 291 (1964) ("[T]he petition ... did not comply with the provisions of [the statute], and for that reason alone, it could have properly been dismissed as insufficient.").

      . We note, as did the Court of Criminal Appeals, that the language "imprisoned or restrained of liberty" used in Tennessee Code Annotated section 29-21-101 (2000), the ha-beas corpus statute, is not co-extensive with the "person in custody” language of Tennessee Code Annotated section 40-30-102 (2003) of the Post-Conviction Procedure Act. The language “in custody” has long been broadly construed to permit persons to collaterally challenge, by means of a post-conviction petition, a judgment of conviction that later may be used to enhance a sentence on another conviction. Such challenges have been allowed even if the sentence on the challenged conviction has been served or has expired at the time the post-conviction petition is filed. See State v. McCraw, 551 S.W.2d 692, 694 (Tenn.1977); Albert v. State, 813 S.W.2d 426, 427 (Tenn.1991). Accordingly, Hickman may be "in custody” for purposes of the Post-Conviction Procedures Act, but he is neither "imprisoned” nor "restrained of liberty” for purposes of seeking habeas corpus relief.

      .Because Hickman’s petition does not indicate his place of confinement and because this case may be resolved on other grounds, we need not consider whether the Court of Criminal Appeals erred by implying in a footnote that Tennessee Code Annotated section 29-21-102 precludes persons in federal custody from seeking habeas corpus relief from Tennessee judgments.

      . See Tenn.Code Ann. § 39-6-417(b) (1982 & 1986 Supp.).

      . See Tenn.Code Ann. § 40-1-109 (1982 & 1986 Supp.).

      . See Ware v. Meharry Med. College, 898 S.W.2d 181, 183-84 (Tenn.1995).

      . For purposes of this appeal, we assume without deciding that Hickman had a right to the assistance of counsel when he pleaded guilty to a misdemeanor in 1986.


source: Caselaw Access Project

author: WILLIAM M. BARKER, J., PER CURIAM.

license: Public Domain

text:
    Torian BENSON a.k.a. Marcus Terry a.k.a. Marcus Benson v. STATE of Tennessee.
    Supreme Court of Tennessee, at Jackson.
    Nov. 2004 Session.
    Dec. 16, 2004.
    Order on Rehearing Jan. 14, 2005.

      Ronald D. Krelstein, Germantown, Tennessee, for the appellant, Torian Benson.
    Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and J. Ross Dyer, Assistant Attorney General, for the appellee, State of Tennessee.
   OPINION

WILLIAM M. BARKER, J.,

delivered the opinion of the court,

.in which the panel of FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., concurred.

This case comes before us on petitions for habeas corpus relief. Although several arguments are raised on appeal, the dis-positive issue presented is whether the petitioner is “imprisoned or restrained of liberty” by the challenged judgments and thus eligible to seek habeas corpus relief, when the petitioner’s sentences expired prior to filing for relief. We hold that he is not. The petitioner was convicted of numerous criminal offenses from 1986 to 1993. In 2002, the petitioner filed three pro se habeas corpus petitions challenging the validity of these convictions. The trial court dismissed the petitions. Upon appeal to the Court of Criminal Appeals, the dismissal of the petitions was affirmed. In addition to affirming the trial court’s initial findings, the intermediate court also held that the petitioner was ineligible for habe-as corpus relief because he was currently incarcerated on unrelated charges and thus had no standing to claim he was being illegally restrained by the challenged convictions. For the reasons stated herein, we affirm the judgment of the Court of Criminal Appeals. Applying the rule recently announced in Hickman v. State, 153 S.W.3d 16, 2004 WL 2563267 (Tenn.2004), we hold that the petitioner is not currently “imprisoned or restrained of liberty” by the challenged convictions because they expired prior to his filing for relief; therefore, he is not entitled to habeas corpus relief.

FACTS

On May 11, 1986, the petitioner pled guilty in Shelby County Criminal Court to four counts of larceny and six counts of robbery. The petitioner was sentenced to three years imprisonment for each larceny count and five years for each robbery count. All sentences were ordered to be served concurrently, resulting in an effective sentence of five years. On March 6, 1989, the petitioner entered guilty pleas to two counts of larceny and one count of aggravated assault. He was sentenced to three years for each count, all to be served concurrently, for an effective total sentence of three years.

On January 4, 1993, the petitioner entered a guilty plea to one count of theft of property over $10,000 and was sentenced to four years imprisonment. On April 23, 1993, the petitioner pled guilty to unlawful possession of a controlled substance with intent to sell and was sentenced to a term of eight years. On September 3, 1993, the petitioner pled guilty to two counts of possession of a controlled substance and received an eight-year sentence for one count and a four-year sentence for the other. All of the 1993 convictions were ordered to be served concurrently.

On April 17, 1997, the petitioner was found guilty of two counts of vehicular homicide and sentenced to a term of fifteen years for each count. Based upon the petitioner’s prior convictions, the trial court found the petitioner to be a “career offender.” Under the sentencing guidelines, this designation required the court to impose the maximum sentence for felony offenses, which in the case of vehicular homicide was fifteen years. The trial court ordered both fifteen-year sentences to be served consecutively, not only with each other but also with another four-year sentence. Therefore, the petitioner is currently serving an effective sentence of thirty-four years imprisonment for these latest crimes.

On August 26, 2002, the petitioner, acting pro se, filed three separate petitions for writs of habeas corpus challenging the validity of the 1986, 1989 and 1993 convictions. The petitioner raises several arguments in these petitions, which are the focus of the present action. With respect to the 1986 convictions, the petitioner argues that the criminal informations charging the crimes are fatally defective. Specifically, the petitioner alleges that the larceny informations are defective because they fail to state the value of the property taken and also the degree of larceny. The robbery informations are alleged to be defective because they do not state that the goods were taken against the victim’s will. Therefore, the petitioner argues that the trial court was without jurisdiction to accept guilty pleas to these defective instruments. Regarding the 1989 convictions, the petitioner asserts that the aggravated assault indictment actually charged an attempted assault, contradicting the applicable statute which makes any attempt to cause serious bodily harm the completed offense of aggravated assault. The petitioner asserts, therefore, that the defective indictment did not properly charge a crime, and the guilty pleas he entered to each of the charges at that time should be nullified.

As to the 1993 convictions, the petitioner challenges the legality of the concurrent sentences imposed by the trial court. He alleges that three of these offenses were committed while he was free on bond. Therefore, pointing to Tennessee Code Annotated section 40 — 20—111(b) (2003) and Tennessee Rule of Criminal Procedure 32, the petitioner argues that the trial court was required to impose consecutive rather than concurrent sentences. Because these sentences were illegally imposed, the petitioner avers that they are void and that he should be allowed to withdraw his guilty pleas. The end result, according to the petitioner, is that because the sentences he is currently serving for vehicular homicide were illegally enhanced by use of these void prior convictions, he should be entitled to re-sentencing in the vehicular homicide cases.

In these habeas corpus petitions, the petitioner requested court-appointed counsel. However, upon reviewing the petitions, the trial court summarily dismissed them without appointing counsel or holding a hearing. The court found that the challenged charging instruments complied with Tennessee Code Annotated sections 40-13-201 and 40-13-202 and therefore were valid. Further, the court found that petitioner’s claim regarding the legality of his concurrent sentences was not cognizable in a habeas corpus proceeding because while the challenged judgments may have been voidable, they were not void. Therefore, the proper avenue to attack these sentences was through a petition for post-conviction relief. The court also noted that the petitioner was currently serving a sentence on other unrelated charges. The Court of Criminal Appeals affirmed the trial court’s denial of habeas corpus relief. Along with affirming the trial court’s initial findings, the intermediate court, citing State v. Bomar, 214 Tenn. 493, 381 S.W.2d 287, 289 (1964), also held that habeas corpus relief was not available because the petitioner was not eligible for immediate release as he was currently incarcerated on charges unrelated to those challenged in the petitions.

We granted the petitioner’s application to appeal and now, for the reasons stated herein, affirm the judgment of the lower courts dismissing the habeas corpus petition.

STANDARD OF REVIEW

Whether a petitioner should be granted habeas corpus relief is a question of law. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn.2001). Therefore, our review of a denial of habeas corpus relief is de novo, with no presumption of correctness accorded to the lower court’s judgment. Id.

ANALYSIS

The writ of habeas corpus, often referred to as the Great Writ, is a high prerogative writ furnishing an extraordinary remedy to secure the release by judicial decree of persons illegally restrained of their liberty. See, e.g., Withrow v. Williams 507 U.S. 680, 697-98, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993); State v. Newell, 216 Tenn. 284, 391 S.W.2d 667, 670 (1965). Article I, section 15 of the Tennessee Constitution protects the right to seek habeas corpus relief, providing that “the privilege of the writ of Habeas Corpus shall not be suspended, unless when in case of rebellion or invasion, the General Assembly shall declare the public safety requires it.” Although developed through the common law, modern habeas corpus practice in Tennessee is regulated largely by statute. State v. Ritchie, 20 S.W.3d 624, 629 (Tenn.2000). The procedural requirements of the habeas corpus statutes are “mandatory and must be followed scrupulously.” Archer v. State, 851 S.W.2d 157, 165 (Tenn.1993). Accordingly, the grounds upon which habeas corpus relief may be granted are quite narrow. Id. at 630; McLaney, 59 S.W.3d at 92 (Tenn.2001).

A statutory prerequisite for eligibility to seek habeas corpus relief is that the petitioner must be “imprisoned or restrained of liberty” by the challenged convictions. The phrase “restrained of liberty” has generally been interpreted to include any limitation placed upon a person’s freedom of action, including such restraints as conditions of parole or probation, or an order requiring a person to remain in one city. See Hickman v. State, -S.W.3d-, 2004 WL 2563267 (Tenn.2004). However, in Hickman, this Court further analyzed the scope of this phrase, holding:

[A] person is not “restrained of liberty” for purposes of the habeas corpus statute unless the challenged judgment itself imposes a restraint upon the petitioner’s freedom of action or movement. Use of the challenged judgment to enhance the sentence imposed on a separate conviction is not a restraint of liberty sufficient to permit a habeas corpus challenge to the original conviction long after the sentence on the original conviction has expired.

Id.

The petitioner in Hickman had been convicted in 1986 of possession of marijuana and received a ten-day suspended sentence. Several years later, Hickman challenged the validity of the 1986 conviction by filing for habeas corpus relief. Hickman sought to have the prior conviction set aside so that it could not be used against him in another pending criminal proceeding. This Court held, among other things, that because Hickman was not currently serving the challenged sentence, he was not imprisoned or restrained of liberty by it. Consequently, he was not eligible for habeas corpus relief. Use of the prior conviction to enhance a later sentence was “merely a collateral consequence” of the challenged conviction and did not provide sufficient grounds for habeas corpus relief.

Turning to the case presently under review, we find that, as in Hickman, the petitioner is not currently imprisoned or restrained of liberty by the challenged convictions. All of the sentences imposed for the petitioner’s challenged convictions had already been served prior to the filing of his habeas corpus petitions in 2002. Even assuming that these prior convictions were used to enhance the sentences he is currently serving, Hickman makes clear that this is not an adequate basis for habeas corpus relief to be granted. The sentences complained of were served and expired before the petitioner filed a habeas corpus petition to challenge them, therefore, he is not presently “imprisoned or restrained of liberty” by any of the challenged convictions. Accordingly, the petitioner is not entitled to habeas corpus relief.

CONCLUSION

In summary, we hold that use of the petitioner’s challenged prior criminal convictions to enhance the sentence he is currently serving does not provide adequate grounds to grant habeas corpus relief. The challenged convictions and sentences expired prior to his filing for habeas corpus relief, therefore they do not comprise a restraint on the petitioner’s liberty for purposes of the habeas corpus statute. Accordingly, the petitioner is not entitled to habeas corpus relief. The judgment of the Court of Criminal Appeals is affirmed.

It appearing from the record that the petitioner is indigent, costs of this appeal are taxed to the State of Tennessee.

ORDER

PER CURIAM.

The petitioner, Torian Benson, has filed a pro se petition to rehear in this case. We note that the petitioner is represented by counsel and pro se petitions are not permitted in such cases. Nevertheless, having considered that merits of the petition to rehear, it is respectfully denied.

      . See Tenn.Code Ann. § 40-35-108 (2003).

      . Tenn.Code Ann. § 40-35-108(c) (2003).

      . Vehicular homicide is a Class C felony. Tenn.Code Ann. § 39-13-213(b) (2003). The applicable sentencing ranges allow a maximum sentence of fifteen years for a Class C felony. Tenn.Code Ann. § 40-35-112(c)(3) (2003).

      . The petitions at issue in the present case were filed in Lake County Circuit Court. The petitioner had previously filed two other ha-beas corpus petitions in 1999 in Shelby County Criminal Court, challenging the legality of his concurrent sentences. By order dated December 13, 1999, the Shelby County Criminal Court dismissed the petitions, finding that the petitioner had failed to attach copies of the judgment sheets to the petitions, as required. The court further found that the petitions should be treated as petitions for post-conviction relief and, as such, had not been timely filed within the applicable statute of limitations.

      . An "information” is a written statement by a district attorney general that charges a person with a crime. Tenn.Code Ann. § 40-3-103(b) (2003). Article I, section 14 of the Constitution of Tennessee provides that “no person shall be put to answer any criminal charge but by presentment, indictment or impeachment.” However, if represented by an attorney, a defendant may waive this right and consent to prosecution by information. Tenn.Code Ann. § 40-3-101 (2003).

      . Tennessee Code Annotated section 40-20-111(b) (2003) states:
      In any case in which a defendant commits a felony while such defendant was released on bail ... and the defendant is convicted of both such offenses, the trial judge shall not have discretion as to whether the sentences shall run concurrently or cumulatively, but shall order that such sentences be served cumulatively.
      Tennessee Rule of Criminal Procedure 32(3)(C) sets forth the same requirement of consecutive sentences when a felony is committed while the defendant is on bail and is subsequently convicted of both offenses.

      . Tennessee Code Annotated section 29-21-101 (2000) sets forth the statutory right to file a petition for writ of habeas corpus and provides: "Any person imprisoned or restrained of liberty, under any pretense whatsoever, [ex-eluding petitioners restrained by virtue of federal process], may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint.”

      . This appeal was granted prior to our decision in Hickman. As previously noted, in the habeas corpus petitions at issue in the present case the petitioner argues that the 1986 and 1989 convictions are void due to infirmities in the charging instruments and that the 1993 judgments should be nullified because the concurrent sentences imposed were illegal. However, in reaching our decision today, we need not address the propriety of these arguments because, in light of our holding in Hickman, these issues are rendered moot.


author: D. MICHAEL SWINEY, J.,

text:
    Onvil ROBINSON, et al. v. Dorothy R. CURREY, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    March 25, 2004 Session.
    June 29, 2004.
    Permission to Appeal Denied by Supreme Court Dec. 6, 2004.

      Larry L. Crain, Brentwood, Tennessee, for the Appellants, Onvil Robinson and Lara Fyfe.
    William M. Foster, Chattanooga, Tennessee, for the Appellees, Dorothy R. Cur-rey and Jack L. Currey.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, J. and WILLIAM H. INMAN, Sr. J., joined.

Onvil Robinson and Lara Fyfe (“Plaintiffs”) sued Dorothy R. Currey and Jack L. Currey (“Defendants”) regarding a condominium unit Plaintiffs purchased from Defendants. Plaintiffs based their claims against Defendants upon the Tennessee Consumer Protection Act, Tenn.Code Ann. § 47-18-101 et. seq., and the Tennessee Residential Property Disclosures Act, Tenn.Code Ann. § 66-5-201 et. seq. Plaintiffs later conceded the Tennessee Consumer Protection Act did not apply to Defendants. The Trial Court granted Defendants summary judgment on the Tennessee Residential Property Disclosures Act claim. Plaintiffs filed a Rule 59 motion to alter or amend, which the Trial Court denied citing both procedural and substantive problems with Plaintiffs’ case. Plaintiffs appeal. We affirm.

Background

This lawsuit arose out of the sale and purchase of a condominium (“the condo”) located in Signal Mountain, Tennessee. Plaintiff Onvil Robinson purchased the condo from Dorothy R. Currey through Ms. Currey’s son, Jack L. Currey, who held Ms. Currey’s power of attorney. After the purchase, Plaintiffs discovered mold and other fungi organisms growing under the carpet, water damage, and a defective HVAC unit.

The only representations made by Defendants about the condo were made in a Tennessee Residential Disclosure Statement provided to Plaintiffs prior to closing. Plaintiff Onvil Robinson never spoke with either Defendant prior to the closing. The Tennessee Residential Disclosure Statement asked if the seller was aware of any “[flooding, drainage, or grading problems” and Defendants checked the box that said ‘no’. Defendants also checked the box that said ‘no’ for the question that asked if seller was aware of any “[property or structural damage from fire, water, ... or wood destroying organisms.” Defendant Jack Currey was aware of a plumbing problem that occurred prior to closing, but understood that problem was fixed. Plaintiffs’ expert, Walter Carter, opined, during his deposition, that even a certified home inspector would not have identified any mold growth in the condo and that other than a piece of plumbing pipe left on the ground in the crawl space, there was no indication of any flooding in the condo.

Initially, Plaintiffs based their claims against Defendants on alleged violations of the Tennessee Consumer Protection Act, Tenn.Code Ann. § 47-18-101 el. seq. Defendants filed a motion for summary judgment. Plaintiffs responded and, among other things, filed the affidavits of Onvil Robinson and Lara Fyfe. Plaintiffs also filed a motion to amend the complaint to include, among other things, a claim against Defendants based upon alleged violations of the Tennessee Residential Property Disclosures Act, Tenn.Code Ann. § 66-5-201 et. seq. In an order entered November 1, 2002, the Trial Court granted Plaintiffs’ motion to amend the complaint “in order to prepare as full a record as possible in the event that there is an appeal from any ruling with respect to the pending dispositive motions.” The Trial Court also allowed the parties additional time to supplement the motions for summary judgment and the responses thereto.

Plaintiffs filed a second affidavit of Onvil Robinson. Defendants moved to strike portions of Onvil Robinson’s and Lara Fyfe’s affidavits arguing, in part, that the assertions made in the affidavits were not based upon personal knowledge. The Trial Court entered its Memorandum and Judgment on January 21, 2003, finding and holding that its November 1, 2002, order rendered the motion to strike portions of the affidavits moot “because that Order contemplated a new submission by the Plaintiffs in response to [Defendants’] motion”; that Plaintiffs conceded the Tennessee Consumer Protection Act did not apply to Defendants because Defendants were not in the business of selling real estate; and that “there is absolutely no evidence to show that [Defendants] knew of the existence of the mold or any extensive water damage.” The detailed January 21, 2003, judgment granted Defendants summary judgment.

Plaintiffs filed a motion to alter or amend and/or set aside the summary judgment. A hearing was held on this motion on April 21, 2003. On April 28, 2003, the Trial Court entered an order setting aside the order granting summary judgment to Defendants and allowing Plaintiffs “ten days from the entry of this order” to supplement their responses to Defendants’ motion for summary judgment. Defendants then filed a motion to set aside the Trial Court’s April 28, 2003, order because “Plaintiffs’ counsel failed to submit his proposed Order to defense counsel prior to filing it, as required by Local Rules 5.02 and 5.03(a).”

On May 8, 2008, Plaintiffs filed affidavits of Onvil Robinson, Gene Konsavage, Hershel Dick, Lara Fyfe, Walter Carter, and Terry W. Rankin. The affidavits of Onvil Robinson, Gene Konsavage, Hershel Dick, and Walter Carter were filed with facsimile signatures rather than original signatures. In addition, the signature pages of several of these affidavits contained a different type face than the remainder of the document. The affidavit of Terry W. Rankin was filed without a signature and Plaintiffs re-filed this affidavit on May 12, 2003, with a facsimile signature.

On May 16, 2003, the Trial Court entered an order correcting its April 28, 2003, order, which Plaintiffs’ counsel had failed to submit to defense counsel prior to presenting it to the Trial Court. In the May 16, 2003, order, the Trial Court held that “Plaintiffs shall have until May 1, 2003, to submit supplemental affidavits in support of [their motion to alter or amend].” The Trial Court later entered its Memorandum and Order on July 2, 2003, holding, inter alia, that the supplemental affidavits filed by Plaintiffs on May 8, 2003, were not timely filed because they were filed seven days after the May 1, 2003, deadline set by the Trial Court at the April 21, 2003, hearing; that the supplemental affidavits filed by Plaintiffs violated the Local Rules because they were filed with facsimile signatures instead of original signatures; and that the affidavit of Terry W. Rankin filed on May 8, 2003, contained no signature and, therefore, violated the Local Rules. The Trial Court further held that the affidavit of Walter Carter, which stated: “[I]t is my opinion that even a casual observer would have expected the materials beneath the flooring to have been exposed to water damage” contradicted Mr. Carter’s previous testimony and, therefore, his contradictory statements cancelled each other out. The July 2, 2003, order again entered summary judgment in favor of Defendants. Plaintiffs appeal to this Court.

Discussion

Although not stated exactly as such, Plaintiffs raise two issues on appeal: 1) whether the Trial Court erred in granting summary judgment with respect to Plaintiffs’ Tennessee Residential Disclosures Act claim; and 2) whether the Trial Court erred by refusing to consider the affidavits fled with Plaintiffs’ Rule 59 motion to alter or amend the judgment in deciding whether to grant Defendants summary judgment. Defendants raise the issue of whether this is a frivolous appeal.

We first will consider whether the Trial Court erred in granting summary judgment with respect to Plaintiffs’ claim under the Tennessee Residential Disclosures Act. In Blair v. West Town Mall, our Supreme Court recently reiterated the standards applicable when appellate courts are reviewing a motion for summary judgment. Blair v. West Town Mall, 130 S.W.3d 761 (Tenn.2004). In Blair, the Court stated:

The standards governing an appellate court’s review of a motion for summary judgment are well settled. Since our inquiry involves purely a question of law, no presumption of correctness attaches to the lower court’s judgment, and our task is confined to reviewing the record to determine whether the requirements of Tennessee Rule of Civil Procedure 56 have been met. See Staples v. CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn.2000); Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is appropriate where: 1) there is no genuine issue with regard to the material facts relevant to the claim or defense contained in the motion, and 2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. Staples, 15 S.W.3d at 88.
When the party seeking summary judgment makes a properly supported motion, the burden shifts to the non-moving party to set forth specific facts establishing the existence of disputed, material facts which must be resolved by the trier of fact.
To properly support its motion, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or conclusively establish an affirmative defense. If the moving party fails to negate a claimed basis for the suit, the non-moving party’s burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If the moving party successfully negates a claimed basis for the action, the non-moving party may not simply rest upon the pleadings, but must offer proof to establish the existence of the essential elements of the claim.

Blair, 130 S.W.3d at 763, 767 (quoting Staples, 15 S.W.3d at 88-89) (citations omitted)).

Our Supreme Court has also provided instruction regarding assessing the evidence when dealing with a motion for summary judgment stating:

The standards governing the assessment of evidence in the summary judgment context are also well established. Courts must view the evidence in the light most favorable to the nonmoving party and must also draw all reasonable inferences in the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment only when both the facts and the inferences to be drawn from the facts permit a reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000).

The Tennessee Residential Disclosures Act, codified at Tenn.Code Ann. § 66-5-201 et. seq., relied on by Plaintiffs, provides, in pertinent part:

With regard to transfers described in § 66-5-201, the owner of the residential property shall furnish to a purchaser one of the following:
(1) A residential property disclosure statement in the form provided in this part regarding the condition of the property, including any material defects known to the owner.... The owner shall not be required to undertake or provide any independent investigation or inspection of the property in order to make the disclosures required by this part; ...

TenmCode Ann. § 66-5-202 (2003). Tennessee Code Annotated § 66-5-204 provides, in pertinent part, that “[t]he owner shall not be hable for any error, inaccuracy or omission of any information delivered pursuant to this part if: (1) The error, inaccuracy or omission was not within the actual knowledge of the owner....” Tenn. Code Ann. § 66-5-204(a) (2004).

The Trial Court found, in its January 21, 2003, Memorandum and Judgment that “there is absolutely no evidence to show that [Defendants] knew of the existence of the mold or any extensive water damage.” The Trial Court found, and we agree, that Defendants affirmatively negated an essential element of Plaintiffs’ claim, that the alleged “material defects [were] known to the owner.” TenmCode Ann. § 66-5-202 (2003). The burden then shifted to Plaintiffs to set forth specific facts establishing the existence of disputed, material facts which must be resolved by the trier of fact. Plaintiffs failed to carry this burden as they submitted nothing to the Trial Court establishing the existence of any disputed material fact relevant to this essential element of Plaintiffs’ claim. As there were no genuine issues with regard to the material facts and Defendants affirmatively negated an essential element of Plaintiffs’ claim, summary judgment was proper. We affirm the Trial Court’s initial grant of summary judgment on January 21, 2003, to Defendants with respect to Plaintiffs’ Tennessee Residential Disclosures Act claim. This, however, does not end our analysis as Plaintiffs filed a Rule 59 motion to alter or amend the judgment.

We next consider whether the Trial Court erred by refusing to consider, in deciding Defendants’ Rule 56 Motion, the affidavits filed with Plaintiffs’ Rule 59 motion to alter or amend the judgment. “We review a trial court’s denial of a Tenn. R. Civ. P. 59.04 motion to alter or amend a judgment for abuse of discretion.” Chambliss v. Stohler, 124 S.W.3d 116, 120 (Tenn.Ct.App.2003). This Court discussed Rule 59 motions in detail in Chambliss stating:

In Schaefer v. Larsen, this Court stated:
when a summary judgment has been granted because the case at that point presents no facts upon which a plaintiff can recover, but prior to that judgment becoming final, the plaintiff is able to produce by motion facts which are material and are in dispute, the motion to alter or amend the judgment should be looked upon with favor, as the purpose of the summary judgment procedure is not to abate the trial docket of the Trial Court, but only to weed out cases for trial in which there is no genuine issue of fact.

Schaefer v. Larsen, 688 S.W.2d 430, 433-34 (Tenn.Ct.App.1985).

Thirteen years later, this Court further explained that although
Schaefer v. Larsen expressed some inclination to relax the strict requirements associated with motions for new trial based on newly discovered evidence, no court has held that the issues of diligence and availability cannot or should not be considered when a party seeks to alter or amend a summary judgment using new evidence.

Bradley, 984 S.W.2d at 933.

As we discussed in Bradley:
Oftentimes, lawyers seeking to overturn a summary judgment after it has been granted overlook the fact that the trial courts may deny a Tenn. R. Civ. P. 59.04 motion seeking to introduce new evidence if there is no particularized showing of due diligence or of the reasons why the new evidence could not have been discovered and presented prior to the initial consideration of the summary judgment motion.

Id. The standard expressed in Schaefer was not intended to provide a second bite at the apple for a party who did not take a motion for summary judgment seriously until the motion was granted. Summary judgment standards are both well settled, as discussed above, and difficult for the moving party to meet. Parties on both sides of a summary judgment motion must heed those standards. The non-moving party must fully oppose a motion for summary judgment before it is granted rather than rely on Rule 59.04 to overturn a summary judgment after only weakly opposing the motion.

In Harris v. Chern, our Supreme Court in dealing with a revision under Rule 54.02 of a partial summary judgment discussed Schaefer and Bradley, but noted that “[t]he question of what standard to apply in ruling on a Rule 59.04 motion to alter or amend, presented in Schaefer and Bradley, is not directly at issue in [Harris] and is thus beyond our reach.” Harris v. Chern, 33 S.W.3d 741, 746 n. 4 (Tenn.2000). The Hanis Court did, however, note that “many of the same considerations discussed [in Harris] would be applicable when a litigant submits additional evidence as part of a Rule 59.04 motion to alter or amend a summary judgment.” Id. The Hams considerations require a trial court dealing with a Tenn. R. Civ. P. 54.02 motion to revise a grant of partial summary judgment to consider:

1) the movant’s efforts to obtain evidence to respond to the motion for summary judgment; 2) the importance of the newly submitted evidence to the movant’s case; 3) the explanation offered by the movant for its failure to offer the newly submitted evidence in its initial response to the motion for summary judgment; 4) the likelihood that the nonmoving party will suffer unfair prejudice; and 5) any other relevant factor.

Id. at 742. The standard set out in Bradley requiring, in a Rule 59.04 motion, a particularized showing of due diligence or of the reasons why the new evidence could not have been discovered and presented prior to the initial hearing on the summary judgment motion takes into account several of the same factors considered in Hams.

Chambliss, 124 S.W.3d at 120-21.

In this case, we believe there are several important considerations including, among others, the Plaintiffs’ efforts to obtain the evidence to respond initially to the summary judgment motion and the Plaintiffs’ explanation for the failure to offer the evidence in their initial response. Plaintiffs made no showing of due diligence and offered no explanation as to why the newly submitted evidence could not have been submitted earlier. In addition, as the Trial Court noted, Plaintiffs violated the Local Rules regarding signatures on the affidavits and failed to file the affidavits in a timely manner. Further, Mr. Carter’s affidavit contradicted his previous testimony given in this case. We will discuss each of these other relevant factors separately below.

First we discuss Plaintiffs’ failure to comply with the Local Rules regarding the signatures on the affidavits. The Local Rules of Practice for Chancery and Circuit Courts of Hamilton County, Tennessee Sec. 3.06 provides that “[pjapers to be filed or lodged that require the signature of a party, the party’s counsel, or other individual or entity shall contain the original signature.” LRCP § 3.06.

The affidavit of Terry W. Rankin filed on May 8, 2003, contained no signature and, therefore, the Trial Court was correct in refusing to consider this affidavit. Plaintiffs concede this point in their appellate brief. The affidavits of Onvil Robinson, Gene Konsavage, Hershel Dick, and Walter Carter filed on May 8, 2003, were filed with facsimile signatures, not original signatures and, thus, violated the Local Rules.

In its July 2, 2003, order, the Trial Court cited the Local Rule of Practice for Chancery and Circuit Courts of Hamilton County, Tennessee Sec. 4.03, which addresses whether facsimile transmittal papers or pleadings may be filed, in support of its ruling regarding the affidavits containing facsimile signatures. LRCP § 4.03. However, in this case, Plaintiffs did not attempt to file the affidavits by facsimile. The issue regarding the signatures arose because Plaintiffs attempted to file affidavits that contained original face pages and signature pages with facsimile signatures. In addition to the facsimile signatures, the affidavits each have internal inconsistencies in things such as type face, paragraph numbering, and sentence structure. The Trial Court found in its July 2, 2003, Memorandum and Order that

[n]ot only were the Plaintiffs’ affidavits facsimiles, it appears that only the first page was an original in order to convince the clerk to file the affidavits. This conclusion is reached by the court because the Plaintiffs only filed the affidavit of Lara Fyfe correctly. At the argument of the motion, the Plaintiffs’ attorney was given the opportunity to explain why and how these filings occurred, but he did not.

“[I]f the Trial Judge reached the right result for the wrong reason, there is no reversible error.” Shutt v. Blount, 194 Tenn. 1, 249 S.W.2d 904, 907 (1952). We find no abuse of discretion by the Trial Court in considering these troubling procedural defects of these affidavits when exercising its discretion as to whether to grant Plaintiffs’ Rule 59 motion.

While the affidavit of Lara Fyfe was filed with an original signature, this affidavit provided no evidence that would tend to show Defendants knew about the mold or any extensive water damage in the condo prior to the sale to Plaintiff Onvil Robinson. This affidavit did nothing to establish the existence of any disputed material fact as to this necessary element of Plaintiffs’ claim.

The affidavit of Walter Carter, in addition to violating the Local Rules regarding the signature, made assertions that contradicted Mr. Carter’s previous testimony. Specifically, Mr. Carter, previously swore, during his deposition, that a certified home inspector would not have identified any mold growth in the condo and that other than a piece of plumbing pipe left on the ground in the crawl space, there was no indication of any flooding in the condo. In his affidavit, however, Mr. Carter stated: “[I]t is my opinion that even a casual observer would have expected the materials beneath the flooring to have been exposed to water damage.”

It is a well settled rule in Tennessee that “contradictory statements by the same witness regarding a single fact cancel each other out.” Church v. Perales, 39 S.W.3d 149, 169 (Tenn.Ct.App.2000); e.g., Johnston v. Cincinnati, N.O. & T.P. Ry. Co., 146 Tenn. 135, 240 S.W. 429, 436 (1922); In Re: Estate of Ross, 969 S.W.2d 398, 400 (Tenn.Ct.App.1997); Taylor v. Nashville Banner Publ’g Co., 573 S.W.2d 476, 482 (Tenn.Ct.App.1978). The rule of cancellation applies only “when the inconsistency in the witness’s testimony is unexplained and when neither version of his testimony is corroborated by other evidence.” Taylor, 573 S.W.2d at 483. “The testimony of a witness as to a particular fact may have value even though he has both affirmed and denied it if the contradiction is explained and is shown to have been the result of misunderstanding or inadvertence.” Johnston, 240 S.W. at 435.

No explanation was provided for the inconsistencies in Mr. Carter’s testimony nor was other evidence produced to corroborate the version of his testimony given in his affidavit. As such, the Trial Court was correct in applying the rule of cancellation and holding that the contradictory statements made by Mr. Carter cancelled each other out.

Even if the Trial Court erred in refusing to consider the affidavits because they lacked original signatures and, as to Mr. Carter’s affidavit, contained testimony contradictory to his previous testimony, the Trial Court in exercising its discretion had other valid grounds for refusing to consider the affidavits. The Trial Court held that the affidavits filed May 8, 2003, were not filed timely. The Local Rules of Practice for Chancery and Circuit Courts of Hamilton County, Tennessee provide, in pertinent part, that:

Sec. 5.01. Preparation
(a) In every case or motion disposed of by an oral ruling of the Court, the Order or Judgment is to be drawn by counsel for the prevailing party unless otherwise ordered.
(b) Unless the Court allows a greater time, the Order or Judgment is to be prepared and forwarded to adversary counsel within five (5) days of the hearing or trial....
Sec. 5.02 Approval
(a) Unless waived by the Court, all orders proposed to be entered shall be submitted to all parties or their counsel for approval....

LRCP §§ 5.01 and 5.02.

In this case, Plaintiffs prevailed, at least to some extent, on the motion heard on April 21, 2003. Thus, under the Local Rules, Plaintiffs’ counsel had the responsibility to draw the appropriate order and submit it within five days of the hearing to all parties or their counsel for approval before submitting it to the Trial Court for entry. Plaintiffs’ counsel drew the order, but did not submit it to the other parties or their counsel for approval prior to presenting it to the Trial Court. The order Plaintiffs’ counsel drafted stated: “Plaintiffs shall have ten days from the entry of this order within which to supplement their earlier responses to the Defendants’ motions for summary judgment.” This order was entered on April 28, 2003. On April 30, 2003, counsel for the various defendants involved in the case joined together and moved the Trial Court to set aside the April 28, 2003, order because of Plaintiffs’ failure to submit the proposed order to the other parties prior to presenting it to the Trial Court for entry. Basically, Defendants argued the April 28, 2003, order did not accurately reflect what the Trial Court held on April 21. The Trial Court agreed with Defendants and entered an order on May 16, 2003, correcting the April 28, 2003, order and stating: “Plaintiffs shall have until May 1, 2003, to submit supplemental affidavits in support of [their] Motion.” The Trial Court’s May 16, 2003, order did not grant Plaintiffs’ Motion to Alter or Amend and/or Set Aside Summary Judgment, but did delay a ruling on that motion and also allowed Plaintiffs additional time, until May 1, 2003, to submit supplemental affidavits in support of their motion.

The Tennessee Rules of Civil Procedure provide, in pertinent part, that:

any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

Tenn. R. Civ. P. 54.02.

The April 28, 2003, order was a non-final order and, thus, was subject to revision and certainly to correction to accurately reflect the Trial Court’s ruling. In its May 16, 2003, order, the Trial Court revised the April 28, 2003, order to correctly reflect the time extension given to Plaintiffs by the Trial Court when it made its oral ruling at the April 21, 2003, hearing. Thus, Plaintiffs had until May 1, 2003, to submit supplemental affidavits. Plaintiffs did not submit supplemental affidavits until May 8, 2003, seven days after the deadline. We find no abuse of discretion by the Trial Court in refusing to consider the supplemental affidavits, which were not filed timely and which contained the other defects as discussed.

We find no abuse of discretion in the Trial Court’s refusal to consider the affidavits filed with Plaintiffs’ Rule 59 motion to alter or amend. Plaintiffs made no showing of due diligence, provided no explanation as to why the evidence was not produced sooner, and the affidavits Plaintiffs produced were deficient in several respects. We affirm the Trial Court’s denial of Plaintiffs’ Rule 59 motion. Having first held that the Trial Court’s initial grant of summary judgment to Defendants was proper and now having found no error in the Trial Court’s denial of Plaintiffs’ Rule 59 motion to alter or amend and its refusal to consider the affidavits that accompanied that motion, we affirm the Trial Court’s grant of summary judgment to Defendants.

Finally, we consider Defendants’ issue, whether this is a frivolous appeal. “A frivolous appeal is one that is ‘devoid of merit,’ or one in which there is little prospect that [an appeal] can ever succeed.” Industrial Dev. Bd. of the City of Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn.Ct.App.1995) (quoting Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202 (Tenn.1978)). Exercising our discretion, we decline to hold this is a frivolous appeal, and further decline to award Defendants any additional attorney fees and costs incurred by this appeal.

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 Appellants, Onvil Robinson and Lara Fyfe, and their surety.

      . Plaintiffs later admitted that Lara Fyfe, Ms. Robinson’s niece, was not a purchaser of the condo and has no ownership interest in the condo.

      . Plaintiffs also sued a number of other parties including a mortgage company, real estate agents, and exterminators. None of these other defendants are involved in this appeal. We discuss only the facts directly relevant to the issues on appeal.

      .Dorothy R. Currey died during the pen-dency of this suit.


author: PER CURIAM.

text:
    NORTH AMERICAN MORTGAGE CO., Petitioner, v. Donald Lee O’HARA, Jr., et al., Respondents.
    No. 02-1050.
    Supreme Court of Texas.
    Dec. 17, 2004.
    R. Brian Craft, Tracy Crawford, Ramey & Flock, Tyler, Gregory D. Smith, R. Bruce Allensworth, Irene C. Freidel, Kirkpatrick & Lockhart LLP, Boston, MA, for petitioner.
    Karen Debiasse Bishop, Bishop & Bishop, Gilmer, Mark C. Brodeur, Brodeur & Evans, Dallas, Mike C. Miller, Marshall, Jonathan R. Moothart, Bowerman, Bow-den & Moothart, P.C., Traverse City, MI, for respondents.
   PER CURIAM.

The court of appeals ordered the trial court to certify a class and prepare a trial plan. We hold that it was error to order the class certified before a trial plan was prepared. We therefore reverse in part and remand to the trial court.

This is the second appeal in this case. For context, we must briefly summarize its entire procedural history.

North American Mortgage Co. made a mortgage loan to Donald Lee O’Hara, Jr. and Cheryl O’Hara and charged them $125 for preparing the documents, as it normally did its mortgage loan customers. The O’Haras, on behalf of themselves and all others similarly situated, sued North American, alleging that the charge violated section 83.001 of the Texas Government Code, which prohibits the unauthorized practice of law. After a hearing, the trial court certified a class of North American’s mortgage loan customers over a certain time period who were charged the same fee.

North American appealed, arguing that several requirements of Rule 42 of the Texas Rules of Civil Procedure regarding class certification had not been met, namely, commonality, typicality, predominance, superiority, and adequacy of representation. The court of appeals rejected all but the last argument, with respect to which it reasoned as follows: the class almost certainly included members whose loans were in default; North American would be required to assert counterclaims against them or “risk losing its remedy of judicial foreclosure and other judicial remedies against defaulting borrowers”; those members’ potential liability would greatly exceed their recovery; their interests therefore conflicted with non-defaulting members who would not be sued and stood to recover; hence, class representatives could not adequately represent both groups at once. The court decertified the class without prejudice to any further efforts by the O’Haras to comply with its opinion. We dismissed North American’s petition for review for want of jurisdiction.

The court of appeals did not cite our opinion in Southwestern Refining Co. v. Bernal, which had issued several weeks earlier. On remand, North American argued that Bernal required the trial court to prepare a trial plan, even though the court of appeals had not included that requirement in its opinion, and the trial court apparently agreed. The O’Haras asked the court to recertify the same class excluding those borrowers whose deeds of trust do not provide for non-judicial foreclosure, but the court refused to certify any class. Since the trial court did not certify a class, it did not prepare a trial plan.

The O’Haras appealed, arguing that their proposed exclusion of class members corrected the only error the court of appeals had found in the previous certification. The court agreed and then discussed Bernal, correctly citing it for the proposition that “[i]t is improper to certify a class without knowing how the claims can and will likely be tried.” Nevertheless, the court decided to “reverse and remand for certification of the class” and directed the trial court to create a trial plan.

Bernal clearly holds that a trial plan is part of the rigorous analysis “[cjourts must perform ... before ruling on class certification”. The court of appeals’ judgment ordering certification before any trial plan has been developed directly conflicts with Bernal. The court should have remanded the case to the trial court for further certification proceedings in light of its opinion, as it did in the first appeal, without dictating the result. Because the appeal was from the denial of certification, the court of appeals was constrained to address the issues raised without benefit of a practical, specific determination by the trial court regarding trial of the case as a class action. The court of appeals’ rejection of arguments against certification does not mandate the opposite result. The requirements of Bernal do not allow the court of appeals to foreclose the further certification analysis that preparation of a trial plan provides. On remand, the trial court should reconsider the class action requirements in light of the court of appeals’ opinion and, consistent with that court’s rulings, conduct such further proceedings as may be necessary to determine whether and how class claims can be tried in light of that opinion.

North American urges us to examine for ourselves whether certification is proper. We decline to do so in the absence of a trial plan. Nor do we express any opinion on the court of appeals’ resolution of the class certification issues it addressed.

We have jurisdiction over this interlocutory appeal because of the direct conflict between the court of appeals’ judgment and our opinion in Bernal. Accordingly, we grant North American’s petition for review and, without hearing oral argument, reverse the judgment of the court of appeals insofar as it orders class certification, and remand the case to the trial court for further proceedings.

      . O'Hara v. North American Mortgage Co., 150 S.W.3d 181 (Tex.App.—Tyler 2002) [O’Hara HI

      . See Tex. Govt.Code § 83.005 (providing for recovery of damages, costs, and attorney fees). See also § 83.006 (providing for in-junctive relief).

      . North American Mortgage Co. v. O’Hara,-S.W.3d-,-(Tex.App.—Tyler 2000, pet. denied) [O’Hara I],

      . Id. at-,-.

      . Id. at-.

      . Id.

      . Id.

      . 44 Tex. Sup.Ct. J. 428 (Feb. 15, 2001).

      . 22 S.W.3d 425 (Tex.2000).

      . O’Hara II, 150 S.W.3d at 188.

      . Id.

      . Id.

      . Id. at 189.

      . Bernal, 22 S.W.3d at 435 (emphasis added).

      . See Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 408 (2000) (concluding that if a class definition is reversed on appeal, any revised definition should be made by the trial court, and the effects of the revision on the requirements for class certification analyzed there).

      . See Tex. Gov’t Code §§ 22.001(a)(2), 22.225(b)(3), (c); Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 687-688 (Tex.2003). The 2003 amendments to these provisions do not apply to this case. Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 681 n. 4 (Tex.2004) (noting that 2003 amendments did not apply) (citing Act of June 11, 2003, 78th Leg., R.S., ch. 204, §§ 1.05, 23.02(a) and (d), 2003 Tex. Gen. Laws 850, 898-99 ("H.B. 4")).

      .Tex.R.App. P. 59.1.


text:
    Dale HOFF, Angie Rendon, David Del Angel and Elmer Cox, Petitioners, v. NUECES COUNTY, Respondent.
    No. 03-0607.
    Supreme Court of Texas.
    Dec. 17, 2004.

      Richard W. Carter, for amicus curiae.
    Kathleen L. Day, Corpus Christi, Kim Cox, for petitioners.
    Rene C. Flores, Flores Law Firm, P.C., Corpus Christi, Alissa Anne Adkins, Laura Garza Jimenez, Kent Brown, Jim Buche, Lubbock, Veda Ann Moore, Richmond, for respondent.
   PER CURIAM.

In this case we consider whether the Eleventh Amendment of the United States Constitution protects Nueces County from a suit brought in state district court by current and former employees of the Nueces County Sheriffs Department for claims arising under the federal Fair Labor Standards Act (FLSA). 29 U.S.C. §§ 201-219. We conclude that because Nueces County is not an arm of the state under Eleventh Amendment jurisprudence, it does not possess Eleventh Amendment immunity from claims brought in state court under the FLSA.

Dale Hoff, Angie Rendon, David Del Angel, and Elmer Cox, current and former employees of the Nueces County Sheriffs Department, brought suit against the County in state district court for alleged violations of the FLSA. The plaintiffs alleged that the Sheriffs Department violated the FLSA specifically by (1) not paying compensation for time worked, (2) mandating that compensatory time be accrued rather than used, (3) failing to accurately compute overtime pay, (4) placing a limitation on the accumulation of vacation and sick leave, and (5) not allowing its employees to take sick and vacation leave. Nueces County filed a plea to the jurisdiction arguing that sovereign immunity barred the plaintiffs’ claims. The district court denied the plea to the jurisdiction, and Nueces County filed an interlocutory appeal to the court of appeals. Analyzing immunity under state statutory and common law, the court of appeals held that Nueces County possessed Eleventh Amendment immunity. The case was remanded to the district court with instructions to grant Nueces County’s plea to the jurisdiction and dismiss the case for want of subject matter jurisdiction. 105 S.W.3d 208, 212-13. Hoff petitioned this Court for review.

Assuming this is an interlocutory appeal, this Court has jurisdiction because the court of appeals’ decision conflicts or holds differently from a prior decision of this Court on a question of law material to a decision of the case. Tex. Gov’t Code § 22.225(c); Gross v. Innes, 988 S.W.2d 727, 729 (Tex.1998) (Section 22.225(c) “affords this Court jurisdiction over any ap-pealable interlocutory order ... when ‘the justices of the court[ ] of appeals disagree on a question of law material to the decision or [when] the court [] of appeals holds differently from a prior decision of another court of appeals or of the supreme court.’ ”); see also Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 222-23 (Tex.2004); Herny Schein, Inc. v. Stromboe, 102 S.W.3d 675, 687 (Tex.2003) (citing Tex. Gov’t Code § 22.001(a)(2)). The test for determining a conflict is whether the decision in one case would operate to overrule the decision in another case on the same question of law if both were rendered by the same court. Schein, 102 S.W.3d at 687-88. In the instant case, as explained herein, the decision of the court of appeals conflicts with a prior decision of this Court. San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 283 (Tex.1996) (“Cities and counties enjoy sovereign immunity ... yet they are not entitled to Eleventh Amendment immunity.”) (citing Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) and Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). We review a plea to the jurisdiction based on sovereign immunity de novo because the question of whether a court has subject matter jurisdiction is a matter of law. Miranda, 133 S.W.3d at 225-26.

The Eleventh Amendment to the U.S. Constitution states:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const, amend. XI. Passage of the Eleventh Amendment merely confirmed that the states as separate sovereigns can limit, with few exceptions, their susceptibility to suit. See Alden v. Maine, 527 U.S. 706, 728-29, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). This aspect of federalism is evident in the structure of the Constitution which “in all its provisions, looks to an indestructible Union, composed of indestructible States.” Texas v. White, 74 U.S. (7 Wall.) 700, 725, 19 L.Ed. 227 (1869). The Eleventh Amendment was passed to protect states, as independent sovereigns, and not to create a new state immunity. Alden, 527 U.S. at 728-29, 119 S.Ct. 2240; Hans v. Louisiana, 134 U.S. 1, 13, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Although “Eleventh Amendment immunity” is a misnomer, because the phrase has become a term of art, we will use it also. See Alden, 527 U.S. at 713, 119 S.Ct. 2240.

Eleventh Amendment jurisprudence, although complex and actively debated, currently is settled in these two respects. First, federal courts have no jurisdiction over federal or state law claims against a state or state agency unless Eleventh Amendment immunity has been expressly waived by the state or abrogated by Congress pursuant to proper constitutional authority. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 59, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (discussing congressional abrogation); Pennhurst State Sch. & Hosp. v. Holderman, 465 U.S. 89, 99-100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (addressing waiver). Second, Eleventh Amendment immunity protects nonconsenting states from being sued in their own courts for federal law claims. Alden, 527 U.S. at 754, 119 S.Ct. 2240 (holding that Congress cannot require a state court to adjudicate federal law claims that could not be brought against a state in federal court). In Alden, probation officers brought suit in state court against the State of Maine, their employer, for alleged violations of the FLSÁ. Id. at 711, 119 S.Ct. 2240. The state court dismissed the federal law claim because the State of Maine did not waive its Eleventh Amendment immunity. The Maine Supreme Judicial Court affirmed the decision bringing it into conflict with a prior decision by the Supreme Court of Arkansas. Id. at 712, 119 S.Ct. 2240 (citing Jacoby v. Ark. Dep’t of Educ., 331 Ark. 508, 962 S.W.2d 773, 774-75 (1998) (holding Eleventh Amendment immunity was limited to protecting states from suits in federal courts)). Affirming the Maine Supreme Judicial Court decision, the U.S. Supreme Court held that a state cannot be sued by its citizens in its own courts for violations of the FLSA without a waiver of the state’s Eleventh Amendment immunity. Alden, 527 U.S. at 754, 119 S.Ct. 2240. The Court explained that Eleventh Amendment immunity does not bar suit against “lesser entities” such as “a municipal corporation or other governmental entity which is not an arm of the State.” Id. at 756, 119 S.Ct. 2240.

In this case, Hoff argues that Nueces County is not an arm of the State of Texas entitled to Eleventh Amendment immunity and therefore can be sued for federal claims in Texas courts. We agree. Recognizing that Nueces County is an arm of the state according to Texas law, the court of appeals then concluded that the county possessed Eleventh Amendment immunity from the federal law claim brought in state court. 105 S.W.3d at 212. The court of appeals confused the character of counties for purposes of the immunity doctrines under Texas law with the treatment of a county for purposes of Eleventh Amendment immunity.

Both the United States Supreme Court and this Court have held that determining whether a division of state government is protected by Eleventh Amendment immunity is a question of federal law. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 n. 5, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997); San Antonio Indep. Sch. Dist., 936 S.W.2d at 281-82. Because federal law controls the treatment of a county for purposes of Eleventh Amendment immunity, we are bound by the decisions of the U.S. Supreme Court on this issue.

Eleventh Amendment immunity has been extended to state agencies that are viewed as arms of the state “to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself.” Lake Country Estates, 440 U.S. at 400-01, 99 S.Ct. 1171. To determine whether an entity should be treated as an arm of the state under the Eleventh Amendment, the U.S. Supreme Court considers the state’s law to determine the nature of the public entity seeking such immunity. See Regents of the Univ. of Cal., 519 U.S. at 429-30, 117 S.Ct. 900. For example, under California law, a county is designated as a “body corporate and politic” that can levy taxes to pay judgments against it, issue bonds payable from county taxes, sell property, and contract for the construction or repairs of structures. Moor v. County of Alameda, 411 U.S. 693, 719, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). The U.S. Supreme Court held that those provisions of California law indicated that Alameda County in California had sufficient indicia of independence to make it distinct from the state for Eleventh Amendment purposes. Id. Applying this analysis, the U.S. Supreme Court has consistently held that neither counties nor cities are arms of the state entitled to protection under Eleventh Amendment immunity. Alden, 527 U.S. at 756, 119 S.Ct. 2240; Regents of the Univ. of Cal., 519 U.S. at 430 n. 6, 117 S.Ct. 900; Lake Country Estates, 440 U.S. at 401, 99 S.Ct. 1171; Mt. Healthy, 429 U.S. at 280, 97 S.Ct. 568. Similarly, we held in San Antonio Independent School District v. McKinney that a school district under Texas law is more like a city or county than an arm of the state and is not entitled to Eleventh Amendment immunity to federal claims. 936 S.W.2d at 282. Under Texas law, a county is a “corporate and political body” that may levy taxes to pay for its debts, sell or lease real property, and issue bonds to provide for its funding. See Tex. Loc. Gov’t Code §§ 71.001, 71.031, 263.001, 293.051. The holdings of the U.S. Supreme Court are dispositive here. We hold that Texas counties, authorized to exercise the aforementioned powers, possess sufficient indicia of independence that they are not arms of the state for purposes of the Eleventh Amendment.

Therefore, Nueces County is not an arm of the state possessing Eleventh Amendment immunity from federal claims brought in state court under the FLSA. Accordingly, without hearing argument, we grant the petition for review, reverse the court of appeals’ judgment granting Nueces County’s plea to the jurisdiction, and remand to the district court for further proceedings consistent with this opinion. Tex.R.App. P. 59.1.

      . The court of appeals reversed the trial court's denial of the plea to the jurisdiction but did not render judgment dismissing the case. The court of appeals appears to have issued essentially a final judgment in this case, remanding the case to the trial court to perform only a ministerial act of dismissing the case for lack of jurisdiction as directed by the court of appeals’ judgment. If the record established that the court of appeals’ judgment was indeed essentially a final appealable judgment, petitioners would not have to satisfy the jurisdictional requirements for interloc-utoiy appeals in section 22.225 of the Texas Government Code.

      . The Legislature amended section 22.001 of the Government Code, effective September 1, 2003. Act of June 11, 2003, 78th Leg., R.S., Ch. 204 (codified as section 22.001(e) of the Texas Government Code). This petition for review was filed in July of 2003. The amendment does not govern our jurisdiction in this case.

      . There is extensive debate among justices of the Supreme Court and in the academic community over the scope and effect of the Eleventh Amendment. See, e.g., Alden, 527 U.S. at 711, 119 S.Ct. 2240 (split 5-4 decision); Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1, 3 (1988) ("The Eleventh Amendment to the United States Constitution is an enigma of increasing concern to the Supreme Court and to scholars.”); William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition Against Jurisdiction, 35 Stan. L.Rev. 1033, 1033 (1983) ("The Eleventh Amendment is one of the Constitution’s most baffling provisions_”); Martha A. Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. Pa. L.Rev. 515, 516 (1978) ("There is ... little agreement about many issues concerning the scope of state sovereign immunity.”). However, on this issue of federal law, we do not enter the debate but apply controlling precedent.