Johnny Stephen Francis v. Janet Kimberley Hughes ( 2018 )

08/28/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 22, 2018 Session
JOHNNY STEPHEN FRANCIS v. JANET KIMBERLEY HUGHES ET AL.
Appeal from the Chancery Court for Bradley County
No. 2015-CV-54 Jerri S. Bryant, Chancellor
No. E2017-02139-COA-R3-CV
The trial court determined that the defendant, Janet Kimberly Hughes, breached her
fiduciary duty to the plaintiff, Johnny Stephen Francis, by utilizing a power of attorney to
withdraw funds from Mr. Francis’s bank account for Ms. Hughes’s sole benefit. The trial
court ordered Ms. Hughes to repay those funds. Ms. Hughes timely appealed. Because
Ms. Hughes has failed to comply with Tennessee Rule of Appellate Procedure 27 and
Tennessee Court of Appeals Rule 6, we dismiss this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.
Janet Kimberley Hughes, Cleveland, Tennessee, Pro Se.
H. Franklin Chancey, Cleveland, Tennessee, for the appellee, Johnny Stephen Francis.
MEMORANDUM OPINION1
Mr. Francis filed a complaint against Ms. Hughes in the Bradley County Chancery
Court on March 6, 2015. Mr. Francis alleged that he and Ms. Hughes had lived together
and been involved in a social relationship for many years. Mr. Francis stated that he
provided the sole means of support for the couple when they lived together, asserting that
he accomplished this through the use of “several hundred thousand dollars of assets
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Tennessee Court of Appeals Rule 10 provides:
This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
which he possessed prior to beginning his relationship with [Ms. Hughes].” Mr. Francis
alleged that during their relationship, he purchased vehicles for Ms. Hughes and placed
her name on certain of his bank accounts. Mr. Francis claimed that his health had begun
to decline in recent years, such that he executed a power of attorney on April 5, 2011,
designating Ms. Hughes as his attorney-in-fact.
On January 2, 2015, Mr. Francis was arrested based on Ms. Hughes’s allegations
that Mr. Francis had abused her. Mr. Francis was subsequently held without bond for
approximately thirty-two days. Mr. Francis alleged in his complaint that while he was in
jail, Ms. Hughes “broke into” his safe and removed the power-of-attorney document.
Ms. Hughes then used the power of attorney to withdraw $231,912 from a bank account
held solely in Mr. Francis’s name. According to Mr. Francis, Ms. Hughes also took
various items of personalty from Mr. Francis’s home, as well as his dog. Mr. Francis
averred that Ms. Hughes was guilty of conversion and breach of fiduciary duty. Mr.
Francis sought return of his money, pet, and property as well as an award of damages.
Mr. Francis also sought a temporary injunction ordering Ms. Hughes to immediately pay
$231,912 into the court’s registry. The trial court entered such injunction on an ex parte
basis.
Ms. Hughes filed an answer to the complaint, denying the material allegations
regarding fault. Ms. Hughes also filed a counter-complaint, alleging that Mr. Francis had
emotionally, verbally, and physically abused her during their relationship. Ms. Hughes
characterized the relationship as “one wherein [Mr. Francis] controlled [Ms. Hughes’s]
actions and kept her as his captive under threat of death.” Ms. Hughes also claimed that
Mr. Francis regularly drugged her with narcotics and benzodiazepines without her
knowledge by slipping the substances into her beverages. Ms. Hughes averred that Mr.
Francis took money from her “by acts of violence, threats of violence and coercion” and
that she relinquished the funds to him based on his threats that he would hurt or kill her if
she refused. In total, Ms. Hughes claimed that Mr. Francis had taken $328,815 from her,
placing the funds in a bank account solely in his name.
The trial court conducted a hearing regarding the temporary injunction and
subsequently entered an order on April 22, 2015, directing Ms. Hughes to deposit the
funds at issue (or any property purchased by the use of such funds) with the Clerk and
Master. The court also enjoined both parties from selling or otherwise disposing of any
property at issue in this matter. On July 17, 2015, the court entered an agreed mutual
restraining order, prohibiting all contact between the parties.
On October 16, 2015, Mr. Francis filed a motion seeking to add Kevin Crye as an
additional defendant in this matter. Mr. Francis asserted that Mr. Crye had received
monies from Ms. Hughes and/or that Ms. Hughes purchased items for Mr. Crye with the
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disputed funds. Ms. Hughes filed a response, denying that she had given funds to Mr.
Crye, except for repayment of monies owed to him. Ms. Hughes opposed Mr. Crye’s
joinder as “a middle school plan of retaliation against the new romantic interest of [Mr.
Francis’s] former partner.” The trial court ultimately allowed Mr. Francis to add Mr.
Crye as a party defendant. On October 19, 2015, the trial court ordered Ms. Hughes to
provide an accounting with supporting documentation regarding the funds at issue. On
January 12, 2016, Mr. Crye filed an answer to the amended complaint, denying liability.
The trial court conducted a hearing in this matter on August 16, 2017,
subsequently entering an order on October 10, 2017. The court found that Mr. Francis
and Ms. Hughes were involved in a relationship from some point in 2006 through
January 2, 2015. The court found that in December 2012, while Mr. Francis was on
probation, Ms. Hughes called Mr. Francis’s probation officer and told him that Mr.
Francis had assaulted her. Mr. Francis was arrested on January 6, 2015, and held without
bond for thirty-two days.
The trial court found that while Mr. Francis was incarcerated, Ms. Hughes and Mr.
Crye removed two vehicles, a dog, and various items of personalty from the home Mr.
Francis and Ms. Hughes had shared. The court also found that Ms. Hughes utilized a
power of attorney Mr. Francis had executed in 2011 to withdraw $231,912 from Mr.
Francis’s bank account. The trial court further found that Ms. Hughes’s accounting of the
funds she spent following the parties’ separation was not credible. The court noted that
Ms. Hughes had voluntarily dismissed the order of protection she obtained against Mr.
Francis in January 2015 and that the criminal charges against Mr. Francis were also
dismissed.
The trial court also noted that Mr. Francis denied having abused Ms. Hughes.
Rather, Mr. Francis testified that Ms. Hughes “did as she pleased” and that they bought
and sold things to earn money. Mr. Francis admitted that Ms. Hughes had bruising on
her body, but he denied assaulting her, stating that they were both “on drugs” at the time.
Mr. Francis also stated that Ms. Hughes used the power of attorney to take money out of
his individually titled bank account while he was in jail without his permission. Mr.
Francis testified that when he returned home after his incarceration, his belongings were
gone.
The trial court found neither party to be a credible witness. The court did find,
however, that Ms. Hughes had used the power of attorney for her own benefit, triggering
the presumption that the use was improper. As the court stated:
[Ms.] Hughes must prove that the transaction was fair. She owed a duty of
honesty and fair dealing to [Mr. Francis], even though she alleged he
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abused her for years. [Ms.] Hughes’ conduct of self-help and unfair dealing
does not lend credibility to her pattern of action. If the money were really
hers, she could have filed a lawsuit and had the account frozen until the
court made a determination. Instead, she had [Mr. Francis] arrested, took
the money, moved in with her boyfriend and either spent or hid the money,
except for $60,000 that is being held in the registry of the court. Much of
her testimony is not believable concerning not only the accounting but also
her allegations that [Mr. Francis] was bullying her. There is no cause of
action by [Mr. Francis] for the money taken from the joint account.
Conversion is the appropriation of another’s property to one’s own use and
benefit, by the exercise of dominion over the property, in defiance of the
owner’s right to the property. Hanna v. Sheflin, 275 S.W.3d 423, 427
(Tenn. Ct. App. 2008). In this case, [Ms.] Hughes exercised dominion and
control over [Mr. Francis’s] property in defiance of [Mr. Francis’s] rights.
[Ms.] Hughes’ defense to this cause of action is that while she may have
exercised control over the funds in defiance of [Mr. Francis], it is her
position the funds belonged to her. This same argument was raised in
Taylor v. Taylor, [No. M2007-00565-COA-R3-CV,] 200[8] WL 1850807
[(Tenn. Ct. App. Apr. 24, 2008)], an unreported case, where the Court of
Appeals held that Defendant’s claim of taking funds was unjustified. In
that case, the court pointed out that an appropriate recourse was available,
and that “pursuing self-interest as is inherent in his receipt of the property,
violated his duty to act in the best interest of his mother” (See Taylor
above). In this case, [Mr. Francis] received no benefit from [Ms.] Hughes’
use of the Power-of-Attorney. This case was tried as a breach of fiduciary
[duty] case through the inappropriate use of a Power-of-Attorney. The
Court must rule whether it is appropriate when one thinks they have had
things stolen from them, to steal those things back. The Court does not
think so. [Ms.] Hughes has failed to prove her claims by clear and
convincing evidence.
The trial court accordingly ordered that certain items of personalty in Mr. Crye’s
possession would be returned to Mr. Francis, and the court awarded to Mr. Francis a
judgment against Ms. Hughes in the amount of $171,000 (in addition to the $60,000 held
in the court’s registry). Ms. Hughes timely appealed. Subsequent to the filing of her
notice of appeal, Ms. Hughes filed a notice that no transcript or statement of the evidence
would be filed.
As a threshold matter, we address Mr. Francis’s issue regarding Ms. Hughes’s
failure to comply with the Tennessee Rules of Appellate Procedure and the rules of this
Court. Ms. Hughes has filed an appellate brief in this matter that is eight pages in length.
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Following our review of this document, we determine that Ms. Hughes has failed to
comply with Tennessee Rule of Appellate Procedure 27 and Tennessee Court of Appeals
Rule 6, such that this appeal must be dismissed.
We recognize that Ms. Hughes is a pro se litigant and respect her decision to
proceed self-represented. With regard to self-represented litigants, this Court has
explained:
Pro se litigants who invoke the complex and sometimes technical
procedures of the courts assume a very heavy burden. Conducting a trial
with a pro se litigant who is unschooled in the intricacies of evidence and
trial practice can be difficult. Nonetheless, trial courts are expected to
appreciate and be understanding of the difficulties encountered by a party
who is embarking into the maze of the judicial process with no experience
or formal training.
Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988) (internal citations
omitted). Parties proceeding without benefit of counsel are “entitled to fair and equal
treatment by the courts,” but we “must not excuse pro se litigants from complying with
the same substantive and procedural rules that represented parties are expected to
observe.” Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003). This Court
must “be mindful of the boundary between fairness to a pro se litigant and unfairness to
the pro se litigant’s adversary.” Id. Furthermore, “[p]ro se litigants are not . . . entitled to
shift the burden of litigating their case to the courts.” See Chiozza v. Chiozza, 315
S.W.3d 482, 487 (Tenn. Ct. App. 2009), perm. app. denied (Tenn. May 20, 2010)
(quoting Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000)).
Tennessee Rule of Appellate Procedure 27 provides in pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
(1) A table of contents, with references to the pages in the brief;
(2) A table of authorities, including cases (alphabetically
arranged), statutes and other authorities cited, with references
to the pages in the brief where they are cited;
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(4) A statement of the issues presented for review;
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(5) A statement of the case, indicating briefly the nature of the
case, the course of proceedings, and its disposition in the
court below;
(6) A statement of facts, setting forth the facts relevant to the
issues presented for review with appropriate references to the
record;
(7) An argument, which may be preceded by a summary of
argument, setting forth:
(A) the contentions of the appellant with respect to the
issues presented, and the reasons therefor, including
the reasons why the contentions require appellate
relief, with citations to the authorities and appropriate
references to the record (which may be quoted
verbatim) relied on; and
(B) for each issue, a concise statement of the applicable
standard of review (which may appear in the
discussion of the issue or under a separate heading
placed before the discussion of the issues) . . . .
(8) A short conclusion, stating the precise relief sought.
Similarly, Tennessee Court of Appeals Rule 6 provides in pertinent part:
(a) Written argument in regard to each issue on appeal shall contain:
(1) A statement by the appellant of the alleged erroneous action
of the trial court which raises the issue and a statement by the
appellee of any action of the trial court which is relied upon
to correct the alleged error, with citation to the record where
the erroneous or corrective action is recorded.
(2) A statement showing how such alleged error was seasonably
called to the attention of the trial judge with citation to that
part of the record where appellant’s challenge of the alleged
error is recorded.
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(3) A statement reciting wherein appellant was prejudiced by
such alleged error, with citations to the record showing where
the resultant prejudice is recorded.
(4) A statement of each determinative fact relied upon with
citation to the record where evidence of each such fact may
be found.
(b) No complaint of or reliance upon action by the trial court will be
considered on appeal unless the argument contains a specific
reference to the page or pages of the record where such action is
recorded. No assertion of fact will be considered on appeal unless
the argument contains a reference to the page or pages of the record
where evidence of such fact is recorded.
Taking into account and respecting Ms. Hughes’s pro se status, we still must
conclude that her appellate brief contains significant deficiencies with regard to the
above-listed requirements. Most notably, Ms. Hughes’s brief completely fails to comply
with the requirements concerning a proper written argument in regard to each issue on
appeal. Ms. Hughes did not set forth the “contentions of the appellant with respect to the
issues presented, and the reasons therefor, including the reasons why the contentions
require appellate relief, with citations to the authorities and appropriate references to the
record.” See Tenn. R. App. P. 27. Moreover, Ms. Hughes failed to provide any
statements setting forth the “alleged erroneous action of the trial court” or the “citation to
the record where the erroneous . . . action is recorded”; statements “showing how such
alleged error was seasonably called to the attention of the trial judge” or a citation
therefor; or statements “reciting wherein appellant was prejudiced by such alleged error.”
See Tenn. Ct. App. R. 6.
This Court has previously held that a “skeletal argument that is really nothing
more than an assertion will not properly preserve a claim.” See Chiozza, 315 S.W.3d at
489 (quoting Newcomb v. Kohler Co., 222 S.W.3d 368, 400 (Tenn. Ct. App. 2006)). Ms.
Hughes’s entire legal argument contained in her appellate brief consists of one sentence
with no citations to legal authority to support her contentions. See Tenn. R. App. P. 27;
Tenn. Ct. App. R. 6. “Courts have routinely held that the failure to make appropriate
references to the record and to cite relevant authority in the argument section of the brief
as required by Rule 27(a)(7) constitutes a waiver of the issue.” Bean v. Bean, 40 S.W.3d
52, 55 (Tenn. Ct. App. 2000). As the Bean Court further explained:
For good cause, we may suspend the requirements or provisions of
these rules in a given case. However, the Supreme Court has held that it
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will not find this Court in error for not considering a case on its merits
where the plaintiff did not comply with the rules of this Court. Crowe v.
Birmingham & N.W. Ry. Co., 156 Tenn. 349, 1 S.W.2d 781 (1928).
Plaintiff’s failure to comply with the Rules of Appellate Procedure and the
rules of this Court waives the issues for review. See Duchow v. Whalen,
872 S.W.2d 692 (Tenn. Ct. App. 1993); see also Lucas v. Lucas, 1998 WL
136553 (Tenn. Ct. App. March 27, 1998).
Bean, 40 S.W.3d at 54-55.
In the instant case, the deficiencies within Ms. Hughes’s appellate brief are so
substantial that it is impossible for this Court to discern Ms. Hughes’s argument and the
relevant facts in order to conduct a meaningful review. As this Court determined in
Murray v. Miracle, 457 S.W.3d 399, 402 (Tenn. Ct. App. 2014):
We are not unmindful of Plaintiffs’ pro se status and have attempted
to give them the benefit of the doubt whenever possible. Nevertheless, we
cannot write Plaintiffs’ brief for them, and we are not able to create
arguments or issues where none otherwise are set forth. Likewise, we will
not dig through the record in an attempt to discover arguments or issues
that Plaintiffs may have made had they been represented by counsel. To do
so would place Defendants in a distinct and likely insurmountable and
unfair disadvantage as this Court would be acting as Plaintiffs’ attorney.
Similarly, we cannot unfairly disadvantage Mr. Francis in this matter by serving as Ms.
Hughes’s attorney. See id. Therefore, Ms. Hughes’s issues presented on appeal are
deemed waived. See Bean, 40 S.W.3d at 54-55.
Conclusion
For the reasons stated above, the appeal of this matter is dismissed. The case is
remanded to the trial court for enforcement of the trial court’s judgment and collection of
costs assessed below. Costs on appeal are assessed to the appellant, Janet Kimberley
Hughes.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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