Hiam Alshinnawi v. Judy Denry ( 2017 )

02/28/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 2, 2017
HIAM ALSHINNAWI v. JUDY DENRY
Appeal from the Circuit Court for Rutherford County
No. 70300 J. Mark Rogers, Judge
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No. M2016-00177-COA-R3-CV
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This case originated when the plaintiff filed an action against the defendant process
server, alleging that the defendant failed to accomplish service within the specified time
period. The plaintiff’s action was dismissed by the trial court due to the plaintiff’s failure
to present sufficient evidence to prove her case at trial. 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.
Hiam Alshinnawi, Roswell, Georgia, Pro Se.
Derek R. Howard, Murfreesboro, Tennessee, for the appellee, Judy Denry.
MEMORANDUM OPINION1
The plaintiff, Hiam Alshinnawi, filed a civil warrant in the Rutherford County
General Sessions Court (“General Sessions Court”) against the defendant, Judy Denry,
alleging that Ms. Denry failed to accomplish service of process upon an individual after
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opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and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.
receiving payment to do so. The General Sessions Court issued summons to Ms. Denry
to appear on June 23, 2015. The record is sparse and contains no court order from the
June 23, 2015 trial date. A letter from Ms. Alshinnawi appears in the record, reflecting
that she had attempted to change the court date, failed to appear in court on June 23,
2015, and had her case dismissed by the General Sessions Court. Thereafter, Ms.
Alshinnawi filed a blank form “Motion,” with no actual pleading included, with the
General Sessions Court, which was “denied w[ith] prejudice” on September 11, 2015.
Ms. Alshinnawi appealed to the Rutherford County Circuit Court (“trial court”).
The trial court, reviewing the matter de novo, conducted a trial on November 5, 2015.
The trial court ultimately ruled in favor of Ms. Denry, finding that “[Ms. Alshinnawi]
failed to meet her burden of proof” and that the matter should be dismissed.2 Ms.
Alshinnawi timely appealed to this Court.
As her appellate brief, Ms. Alshinnawi initially filed a document resembling a
letter directed to this Court. Ms. Alshinnawi informed the clerk of this Court that the
letter should be treated as her appellate brief. On August 19, 2016, upon determining this
document to be noncompliant with Tennessee Rule of Appellate Procedure 27, this Court
ordered that the document be stricken and afforded Ms. Alshinnawi an additional
fourteen days within which to file an appellate brief that substantially complied with
Tennessee Rule of Appellate Procedure 27. In its order, this Court informed Ms.
Alshinnawi that “[a]ny facts asserted in the brief shall be supported by appropriate
citations to the record on appeal” and that this Court “will not consider any facts not
supported by the record on appeal.” Ms. Alshinnawi subsequently filed a motion for an
extension of time to file her appellate brief, which was granted. The time to file an
appellate brief was extended to October 3, 2016. Ms. Alshinnawi filed a second motion
for extension of time to file her appellate brief, and this Court granted Ms. Alshinnawi an
additional fourteen days in which to file her appellate brief. On October 17, 2016, Ms.
Alshinnawi filed her appellate brief with this Court. Ms. Denry did not file a responsive
brief in this matter.
We recognize that Ms. Alshinnawi 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. Gray v. Stillman
White Co., 522 A.2d 737, 741 (R.I. 1987). Conducting a trial with a pro se
2
We note that the record is completely devoid of a transcript or statement of the evidence from
the trial on November 5, 2015. See Tenn. R. App. P. 24(b), (c). On March 29, 2016, Ms.
Alshinnawi filed a letter in the trial court, notifying the court that she did not wish to file a
transcript or statement of the evidence.
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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.
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.” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003).
Ms. Alshinnawi’s appellate brief filed with this Court fails to comply with
Tennessee Rule of Appellate Procedure 27 or Tennessee Court of Appeals Rule 6.
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:
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(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.
(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 Ms. Alshinnawi’s pro se status, we still must
conclude that her appellate brief contains numerous significant deficiencies with regard
to the above-listed requirements. First, Ms. Alshinnawi’s brief completely lacks a table
of authorities as required by Tennessee Rule of Appellate Procedure 27(a)(2).
Importantly, Ms. Alshinnawi’s entire appellate brief contains no citations or references to
the record on appeal and no citations to any legal authority to support her factual
allegations and arguments. 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).
In addition to a failure to provide citations to the record, the majority of Ms.
Alshinnawi’s statements of fact within her appellate brief are not supported anywhere
within the record on appeal. Furthermore, in Ms. Alshinnawi’s “Statement of the Issue
Presented for Appeal,” she states: “I will prove that she gave the dates to serve the
subpoena after I withdrew the case from her.” (Emphasis added.) Ms. Alshinnaw is not
permitted to present additional evidence to this Court that was not presented in the trial
court. See Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976) (“This is a court of
appeals and errors, and we are limited in authority to the adjudication of issues that are
presented and decided in the trial courts[.]”).
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, 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. Alshinnawi’s appellate brief are so
substantial that it is difficult for us to determine Ms. Alshinnawi’s argument and the
relevant facts. As this Court determined in Murray v. Miracle, 457 S.W.3d 399, 402
(Tenn. Ct. App. 2014):
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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 the defendant in this matter by serving as Ms.
Alshinnawi’s attorney. See id.; Young, 130 S.W.3d at 63. Therefore, Ms. Alshinnawi’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, Hiam Alshinnawi.
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THOMAS R. FRIERSON, II, JUDGE
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