Charles Beard v. Arvin W. Glass ( 2017 )

07/07/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 1, 2017
CHARLES BEARD v. ARVIN W. GLASS ET AL.
Appeal from the Circuit Court for Rutherford County
No. 71376 Howard W. Wilson, Chancellor
No. M2016-02395-COA-R3-CV
The plaintiff filed this action against the defendants, alleging that the plaintiff had been
wrongfully expelled from the Prince Hall Masonic organization. The plaintiff further
alleged that he had been defamed and his reputation damaged. The action was dismissed
by the trial court due to the plaintiff’s failure to state a claim upon which relief could be
granted and for lack of subject matter jurisdiction. The plaintiff timely appealed.
Because the plaintiff 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 RICHARD H.
DINKINS, J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Charles Beard, Murfreesboro, Tennessee, Pro Se.
Isaac T. Conner and Afton Strong, Nashville, Tennessee, for the appellees, Arvin W.
Glass, Grandmaster, and Most Worshipful Prince Hall Grand Lodge.
MEMORANDUM OPINION1
The plaintiff, Charles Beard, filed a complaint on May 23, 2016, in the Rutherford
County Circuit Court (“trial court”), naming as defendants Arvin W. Glass, Grandmaster,
1
Tennessee Court of Appeals Rule 10 provides as follows:
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opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and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.
and Most Worshipful Prince Hall Grand Lodge (collectively, “Defendants”). Mr. Beard,
proceeding self-represented, alleged that he had been wrongfully expelled from the
Prince Hall Masonic organization by Mr. Glass. Mr. Beard also alleged that he had been
defamed by Mr. Glass, resulting in damage to his reputation. Mr. Beard sought damages
and reinstatement to the organization.
Defendants filed a motion to dismiss on October 18, 2016, asserting that Mr.
Beard had failed to state a claim upon which relief could be granted. Defendants claimed
that Mr. Beard had failed to provide a short and plain statement of the facts upon which
his claims were based and also that he had failed to state his claims with sufficient
specificity. Defendants further asserted that the trial court had no subject matter
jurisdiction regarding what was, essentially, an “intra-fraternity dispute.” Mr. Beard
responded by filing various documents in support of his complaint, including
correspondence between Mr. Beard and Mr. Glass, excerpts from the Prince Hall
Masonic Code and Constitution, and press releases.
The trial court conducted a hearing regarding the motion to dismiss on October 28,
2016. In its resultant order, dated November 1, 2016, the court dismissed Mr. Beard’s
claims for failure to state a claim upon which relief could be granted and for lack of
subject matter jurisdiction. Mr. Beard timely appealed. On appeal, Mr. Beard filed a
document entitled, “Brief in Support of Appeal and Petition for Summary Judgment,”
which this Court treated as the principal brief of the appellant. Mr. Beard also filed an
amendment to his brief. Following our review of these documents, however, we
determine that Mr. Beard has failed to comply with Tennessee Rule of Appellate
Procedure 27 and Tennessee Court of Appeals Rule 6.
We recognize that Mr. Beard is a pro se litigant and respect his 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. Gray v. Stillman
White Co., 522 A.2d 737, 741 (R.I. 1987). Conducting a trial with a pro se
litigant who is unschooled in the intricacies of evidence and trial practice
can be difficult. Oko v. Rogers, 125 Ill. App. 3d 720, 81 Ill. Dec. 72, 75,
466 N.E.2d 658, 661 (1984). 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.
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Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). 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)).
As a threshold matter, we address, sua sponte, Mr. Beard’s failure to comply with
the Tennessee Rules of Appellate Procedure and the rules of this Court. Tennessee Rule
of Appellate Procedure 27 states 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;
(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
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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.
(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.
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Taking into account and respecting Mr. Beard’s pro se status, we still must
conclude that his appellate brief contains numerous significant deficiencies with regard to
the above-listed requirements. First, Mr. Beard’s brief completely lacks a table of
authorities as required by Tennessee Rule of Appellate Procedure 27(a)(2). Second, Mr.
Beard’s brief has no distinct statement of issues or statement of the case as required by
Tennessee Rule of Appellate Procedure 27(a)(4)-(5). As this Court has previously
explained:
The requirement of a statement of the issues raised on appeal is no
mere technicality. First, of course, the appellee is entitled to fair notice of
the appellate issues so as to prepare his or her response. Most important,
this Court is not charged with the responsibility of scouring the appellate
record for any reversible error the trial court may have committed. On
appeal, “[r]eview generally will extend only to those issues presented for
review.” Tenn. R. App. P. 13.
Owen v. Long Tire, LLC, No. W2011-01227-COA-R3-CV, 2011 WL 6777014, at *4
(Tenn. Ct. App. Dec. 22, 2011).
Third, although Mr. Beard’s brief does contain argument, 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)). Importantly, Mr. Beard’s
entire appellate brief contains no citations to the record on appeal and no citations to any
legal authority to support his factual allegations and argument. 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 this Court has 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
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,
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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 Mr. Beard’s appellate brief are so
substantial that it is difficult for us to discern Mr. Beard’s argument and the relevant
facts. 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 Defendants in this matter by serving as Mr.
Beard’s attorney. See id. Therefore, Mr. Beard’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 collection of costs assessed below. Costs on appeal are
assessed to the appellant, Charles Beard.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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