Sandra Buttram v. Kenneth Ramsey ( 2018 )

05/15/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 1, 2018
SANDRA BUTTRAM v. KENNETH RAMSEY
Appeal from the Circuit Court for Hamilton County
No. 16C1460 J.B. Bennett, Judge
No. E2017-00937-COA-R3-CV
Kenneth Ramsey (“Defendant”), pro se, appeals the April 18, 2017 order of the Circuit
Court for Hamilton County (“the Circuit Court”) granting Plaintiff’s motion to dismiss
Defendant’s appeal from General Sessions Court to the Circuit Court. Defendant’s brief
on appeal severely fails to comply with Tenn. R. App. P. 27. We, therefore, find that
Defendant has waived his issues on appeal. We affirm the Trial Court’s April 18, 2017
order.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and ARNOLD B. GOLDIN, JJ. joined.
Kenneth E. Ramsey, Chattanooga, Tennessee, pro se appellant.
Peter C. Ensign, Chattanooga, Tennessee, for the appellee, Sandra Buttram.
MEMORANDUM OPINION1
Sandra Buttram (“Plaintiff”) sued Defendant and Sandra Ramsey in the General
Sessions Court for Hamilton County (“General Sessions Court”) seeking, among other
things, re-possession of rental property. The General Sessions Court granted Plaintiff
judgment by default for possession. Defendant filed a motion to set aside the default
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Rule 10 of the Rules of the Court of Appeals 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memorandum opinion it shall be designated ‘MEMORANDUM OPINION,’ shall not be published, and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.”
judgment, a petition to hold judgment as void, and a motion to stay execution of
judgment. Defendant also filed a notice of appeal to this Court. By order entered
February 9, 2016, this Court determined that it lacked subject matter jurisdiction and
transferred the appeal to the Circuit Court. Defendant then filed a Petition for Writ of
Mandamus in the Circuit Court.
Plaintiff filed a motion to dismiss the appeal in Circuit Court alleging, in part, that
the General Sessions Court had denied Defendant’s motions; that Defendant failed to
timely appeal the judgment of the General Sessions Court granting Plaintiff possession;
that thereafter Plaintiff filed suit in the Chancery Court for Hamilton County (“the
Chancery Court”) seeking to quiet title to the real property at issue; that in September of
2016 the Chancery Court had entered an order divesting all right, title and interest in the
property out of Defendant and Sandra Ramsey and into Plaintiff; and that Defendant did
not appeal the judgment of the Chancery Court, which became final.
By order entered April 18, 2017, the Circuit Court granted Plaintiff’s motion and
dismissed Defendant’s appeal from the General Sessions Court after finding and holding,
inter alia:
This matter came to be heard on March 20, 2017, on Plaintiff’s
Motion to Dismiss before the Honorable Marie Williams, sitting in place of
the Honorable J.B. Bennett. The matter was duly called and only the
Plaintiff, in person and through counsel, appeared.
After review of the pleadings and hearing of argument, Judge
Williams granted Plaintiff’s Motion to Dismiss. Subsequently, on March
21, 2017, Defendant Kenneth Ramsey appeared in Judge Bennett’s court
room claiming his notice stated the hearing was on March 21, 2017.
Plaintiff’s counsel agreed to move the hearing to April 3, 2017, and not
enter any order from Judge Williams.
On April 3, 2017, counsel for Plaintiff again appeared, but
Defendant Kenneth Ramsey did not appear. As well, Defendant Kenneth
Ramsey has never filed any response to the properly filed and noticed
Motion to Dismiss.
Defendant appeals the April 18, 2017 order of the Circuit Court granting Plaintiff’s
motion to dismiss his appeal.
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Defendant is pro se on appeal. As this Court explained in Young v. Barrow:
Parties who decide to represent themselves are entitled to fair and
equal treatment by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d
222, 227 (Tenn. Ct. App. 2000); Paehler v. Union Planters Nat’l Bank,
Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997). The courts should take
into account that many pro se litigants have no legal training and little
familiarity with the judicial system. Irvin v. City of Clarksville, 767
S.W.2d 649, 652 (Tenn. Ct. App. 1988). However, the courts must also be
mindful of the boundary between fairness to a pro se litigant and unfairness
to the pro se litigant’s adversary. Thus, the courts must not excuse pro se
litigants from complying with the same substantive and procedural rules
that represented parties are expected to observe. Edmundson v. Pratt, 945
S.W.2d 754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d
728, 733 n. 4 (Tenn. Ct. App. 1995).
Young v. Barrow, 130 S.W.3d 59, 62–63 (Tenn. Ct. App. 2003).
Defendant’s brief on appeal fails to comply in any meaningful way with Tenn. R.
App. P. 27. Rule 27 of the Tennessee Rules of Appellate Procedure specifies that an
appellant’s brief must contain, inter alia:
(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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(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);
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Tenn. R. App. P. 27(a).
Defendant’s brief fails to comply with Tenn. R. App. P. 27. While Defendant’s
brief contains a page titled “TABLE OF AUTHORITIES,” the only other information on
that page states: “TRCiv P Rule 3 and /Rule 4.” Defendant provides no citations to the
pages of the brief wherein these authorities are cited, and cites to no other authority
whatsoever.
Defendant’s brief contains a section titled “STATEMENT OF THE ISSUE
PRESENTED FOR REVIEW.” The two issues that Defendant states within this section,
however, attempt to raise issues with regard to the judgment from the General Sessions
Court, not the Circuit Court. The record on appeal reveals that Defendant did not raise
these issues in the Circuit Court, and the Circuit Court made no findings whatsoever with
regard to these alleged issues. The law in Tennessee is well settled that issues not raised
in the trial court may not be raised on appeal. E.g., In re: The Guardianship of R.D.M.,
306 S.W.3d 731, 736 (Tenn. Ct. App. 2009). As the appeal before us is an appeal of the
order of the Circuit Court rather than the General Sessions Court, Defendant’s statement
of the issues raises no appealable issues at all.
Defendant’s half-page “STATEMENT OF FACTS” contains misnumbered
sentence fragments with no citations to the record. In its entirety, Defendant’s
“ARGUMENT” section states:
1. Do the Tennessee Rules of Civil Procedure Require service of both a
Summons and a copy of the complaint.
TRCivP Rule 4
The plaintiff shall furnish the person making the service with such copies of
the summons and complaint as are necessary. Service shall be made as
follows:
TRCivP Rule 4.04(1) Upon an individual other than an unmarried infant or
an incompetent person, by delivering a copy of the summons and of the
complaint to the individual personally,
Because no copy of the complaint could possibly have been served with the
summons as required by Rule 4 the service of Process was incomplete and
the court lacked Jurisdiction.
Perhaps the only thing that is clear from Defendant’s brief is that Defendant is
unhappy with the outcome of the case in some way. We will not undertake to search the
record and then revise Defendant’s brief in its entirety so as to create issues of claimed
errors by the Circuit Court when Defendant raises no such specific claimed errors by the
Circuit Court, because to do so would have this Court serve as Defendant’s attorney.
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We are not unmindful of Defendant’s pro se status and have given him the benefit
of the doubt whenever possible. Nevertheless, we cannot write Defendant’s brief for
him, 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 Defendant may have made had he been represented by counsel. To do so
would place Plaintiff in a distinct and likely insurmountable and unfair disadvantage as
this Court would be acting as Defendant’s attorney.
A party’s failure to comply with the appellate brief requirements set forth in Tenn.
R. App. P. 27 can have serious consequences, as we have warned repeatedly:
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. See State v.
Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997); Rampy v. ICI
Acrylics, Inc., 898 S.W.2d 196, 210 (Tenn. Ct. App. 1994); State v.
Dickerson, 885 S.W.2d 90, 93 (Tenn. Crim. App. 1993). Moreover, an
issue is waived where it is simply raised without any argument regarding its
merits. See Blair v. Badenhope, 940 S.W.2d 575, 576-577 (Tenn. Ct. App.
1996); Bank of Crockett v. Cullipher, 752 S.W.2d 84, 86 (Tenn. Ct. App.
1988). . . . This Court is under no duty to verify unsupported allegations in
a party’s brief, or for that matter consider issues raised but not argued in the
brief. Duchow v. Whalen, 872 S.W.2d 692, 693 (Tenn. Ct. App. 1993)
(citing Airline Const. Inc., [sic] v. Barr, 807 S.W.2d 247 (Tenn. Ct. App.
1990)).
Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000).
Defendant failed to comply in any significant way with Tenn. R. App. P. 27, most
importantly by failing to raise any issue of claimed error by the Circuit Court, and this
failure makes it impossible for this Court to conduct any realistic review of the Circuit
Court’s judgment. As such, we find and hold that Defendant has waived any issues he
may have attempted to raise on appeal. The costs on appeal are assessed against the
appellant, Kenneth E. Ramsey, for which execution may issue if necessary.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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