M&T Bank v. Joycelyn A. Parks ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 23, 2014 Session
M&T BANK v. JOYCELYN A. PARKS, ET AL.
Appeal from the Circuit Court for Shelby County
No. CT-003810-13 James F. Russell, Judge
No. W2013-02580-COA-R3-CV - Filed November 24, 2014
The trial court dismissed this detainer appeal for failure to post a bond in compliance
with Tennessee Code Annotated Section 28-18-130(b)(2). Because Appellant’s brief contains
no argument regarding the applicability of Tennessee Code Annotated Section 28-18-
130(b)(2), we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. S TEVEN S TAFFORD, P.J., W.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R., P.J., M.S., and A RNOLD B. G OLDIN, J., joined.
Mia Scullark, Cordova, Tennessee, Pro Se.
Jerry Morgan, Brentwood, Tennessee, for the Appellee, M&T Bank.
MEMORANDUM OPINION 1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee 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be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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.
Background
The Plaintiff/Appellee M&T Bank filed a detainer action in Shelby County General
Sessions Court against Defendant Joycelyn A. Parks for possession of the property located
at 5993 Cedarcrest Court in Shelby County. According to M&T Bank, the only named
defendant was Joycelyn A. Parks, the borrower on the foreclosed deed of trust. The Detainer
Warrant, however, lists “Joycelyn A. Parks or Current Occupants” as defendants in the
matter. Ms. Parks apparently did not contest the detainer matter2 and a judgment for
possession of the property was entered in M&T Bank’s favor on August 12, 2013.
On August 19, 2013, Appellant Mia Scullark filed an appeal of the General Sessions
ruling to the Shelby County Circuit Court.3 Ms. Scullark’s notice of appeal indicated that her
address was “8353 Bazemore/5993 Cedarcrest.” The record indicates that Ms. Scullark paid
the filings fees associated with her appeal. On the same day, Ms. Scullark also purported to
file a bond in the Circuit Court, signed by Polly Agee, in which Ms. Scullark stated that Ohio
Casualty Insurance was her surety for appellate purposes. Attached to the bond was a one-
page “Power of Attorney,” involving American Fire and Casualty Company, The Ohio
Casualty Insurance Company, Liberty Mutual Insurance Company, and West American
Surety Company. The Power of Attorney document stated that Polly Agee was authorized
to act as an attorney-in-fact for the above companies. The Power of Attorney specifically
gave the attorneys-in-fact, such as Polly Agee, the right to execute surety bonds.
On September 23, 2013, M&T Bank filed a motion to dismiss Ms. Scullark’s appeal,
arguing that Ms. Scullark failed to post a bond pursuant to Tennessee Code Annotated
Section 29-18-130(b)(2), which provides:
In cases where the action has been brought by a landlord to
recover possession of leased premises from a tenant on the
grounds that the tenant has breached the contract by failing to
pay the rent, and a judgment has been entered against the tenant,
subdivision (b)(1) shall not apply. In that case, if the defendant
prays an appeal, the defendant shall execute bond, or post either
a cash deposit or irrevocable letter of credit from a regulated
financial institution, or provide two (2) good personal sureties
2
Ms. Parks is also not a party to this appeal.
3
M&T Bank contends that Ms. Scullark was neither an owner nor an occupant of the subject
property.
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with good and sufficient security in the amount of one (1) year’s
rent of the premises, conditioned to pay all costs and damages
accruing from the failure of the appeal, including rent and
interest on the judgment as provided for herein, and to abide by
and perform whatever judgment may be rendered by the
appellate court in the final hearing of the cause. The plaintiff
shall not be required to post a bond to obtain possession in the
event the defendant appeals without complying with this section.
The plaintiff shall be entitled to interest on the judgment, which
shall accrue from the date of the judgment in the event the
defendant’s appeal shall fail.
M&T Bank argued that pursuant to the Deed of Trust on the property, any person in
possession of the property who did not immediately surrender possession of the property
upon demand would be considered a “tenant at will.” Accordingly, M&T Bank argued that
because Ms. Scullark was alleging that she was an occupant of the property, her appeal
should be considered a landlord-tenant dispute and subject to the bond requirement of
Tennessee Code Annotated Section 29-18-130(b)(2). Because Ms. Scullark had allegedly
failed to comply with this section by timely filing a bond, M&T Bank argued that the Circuit
Court lacked subject matter jurisdiction to consider her appeal.
While the motion to dismiss was pending in Circuit Court, on November 13, 2013,
Ms. Scullark filed a notice to remove the case to federal court. After the matter was removed,
M&T Bank filed a motion to return the matter to state court and to be awarded attorney’s fees
incurred in the federal action. On January 16, 2014, the federal magistrate entered a report
and recommendation stating that M&T’s motion should be granted. On February 3, 2014, the
federal district court adopted the recommendation of the magistrate judge, remanded the case
back to state court, and entered an order awarding attorney’s fees to M&T Bank. Although
Ms. Scullark appealed the district court’s order to the Sixth Circuit Court of Appeals, M&T
Bank asserts that her appeal was dismissed for failure to file an appellate brief.
Before the case was officially remanded back to the trial court, the trial court granted
M&T Bank’s motion to dismiss the appeal by order of November 15, 2013, finding that Ms.
Scullark had not posted a proper appellate bond pursuant to Tennessee Code Annotated
Section 29-18-130(b)(2). Ms. Scullark filed a timely notice of appeal to this Court.4
4
On February 10, 2014, M&T Bank filed a motion to dismiss Ms. Scullark’s appeal to this
Court on the basis that Ms. Scullark lacked standing to prosecute the appeal. Ms. Scullark was directed to
file a response, which was filed on March 20, 2014. M&T Bank filed a reply on March 31, 2014. On May
(.....continued)
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Issues Presented
Ms. Scullark raises several issues in her appellate brief, which we restate verbatim
here:
1. Whether Plaintiff brought a claim under the wrong theory
a false Claim in General Sessions Court.
2. Whether the Circuit Court Judge err in Granting Motion
to dismiss pursuant to Tennessee Code Annotated 29-18-
130(b)(2) with out no valid rental agreement or no
evidence that a forcible entry had been made.
3. Whether the Circuit Court Judge err in Granting a 1
year’s rent when the Judgement form General Sessions
Court was only for Possession Only.
4. Whether the Judge err in Granting a Motion to Dismiss
on November 15, 2013 when the case was remove from
Circuit Court to the United States Western District Court
on November 14, 2013.
In the posture of Appellee, M&T Bank raises the following issue, also taken from its
brief:
1. Whether Appellant has standing to bring this appeal.
2. Whether the merits of this appeal may be considered
when Appellant filed an inadequate brief under Tenn. R.
App. P. 27 and Tenn. R. Ct. App. 6.
3. Whether the trial court erred in granting Appellee’s
Motion to Dismiss where a non-party, stranger to the
case filed a notice of removal.
4. Whether the trial court erred in exercising subject matter
jurisdiction over the unlawful detainer.
5. Whether the trial court erred in dismissing Appellant’s
appeal of a General Sessions ruling to the Circuit Court
for failure to post the appropriate bond.
(.....continued)
31, 2014, this Court declined to grant the motion at that time, but indicated that the denial “should not be
construed as preventing [M&T Bank] from submitting arguments in its brief regarding [Ms. Scullark’s]
standing to appeal.”
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Analysis
Before we can address the merits of Ms. Scullark’s appeal, we must first consider the
deficiencies in Ms. Scullark’s brief. 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;
(3) A jurisdictional statement in cases appealed to the Supreme
Court directly from the trial court indicating briefly the
jurisdictional grounds for the appeal to the Supreme Court;
(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 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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(8) A short conclusion, stating the precise relief sought.
Tenn. R. App. P. 27(a).
Ms. Scullark’s brief complies with Rule 27 in most respects save one: her brief
contains no argument, nor any citation to authority regarding the actual ground upon which
the trial court dismissed her case. Rule 27 specifically requires that an appellant’s brief must
include an argument section, containing both a statement of the standard of review for each
issue, as well as the reasons the trial court’s decision is incorrect, supported by appropriate
authority. In addition, Rule 6 of the Rules of the Court of Appeals of Tennessee describes
further requirements for the content of the argument “in regard to each issue on appeal.” Rule
6 states:
(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.
Tenn. R. Ct. App. 6.
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From our review of Ms. Scullark’s brief, although she raises the dismissal of her
appeal as her second issue presented, she does not discuss this issue in the body of her brief.
Instead, Ms. Scullark focuses the argument in her brief on the underlying detainer action.
While Ms. Scullark cites considerable law concerning detainer actions, no law is cited as to
whether the trial court correctly held that Ms. Scullark failed to comply with Tennessee Code
Annotated Section 29-18-130(b)(2), or whether the trial court correctly held that Ms.
Scullark’s purported failure to comply with that section deprived the Circuit Court of subject
matter jurisdiction to consider her appeal. Indeed, Tennessee Code Annotated Section 29-18-
130(b)(2) is cited only once in Ms. Scullark’s brief, in her Statement of the Issues. This Court
has repeatedly held that a party’s failure to argue an issue in the body of his or her brief
constitutes a waiver of the issue on appeal. Newcomb v. Kohler Co., 222 S.W.3d 368, 401
(Tenn. Ct. App. 2006). Additionally, it is well-settled that “the failure . . . 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).
The trial court’s dismissal rests on one finding of fact and one conclusion of law: that
Ms. Scullark failed to comply with Tennessee Code Annotated Section 29-18-130(b)(2) and
that non-compliance deprives the trial court of subject matter jurisdiction to consider her
appeal. The issues of the propriety of the General Sessions Court judgment are simply not
relevant at this stage in the litigation. Because Ms. Scullark did not argue the applicability
of Tennessee Code Annotated Section 29-18-130(b)(2) in the body of her brief, nor does she
cite any law regarding this issue, any assignment of error concerning the statute’s
applicability to this case is waived. Consequently, Ms. Scullark has waived any argument
regarding the central issue in this appeal.
We recognize that Ms. Scullark is proceeding pro se in this appeal, as she was in the
trial court, and therefore may not be fluent in the Rules of this Court. However, it is
well-settled that, “[w]hile a party who chooses to represent himself or herself is entitled to
the fair and equal treatment of the courts, . . . ‘[p]ro se litigants are not . . . entitled to shift
the burden of litigating their case to the courts.’” Chiozza v. Chiozza, 315 S.W.3d 482, 487
(Tenn. Ct. App. 2009) ( internal citation omitted) (quoting Whitaker v. Whirlpool Corp., 32
S.W.3d 222, 227 (Tenn. Ct. App. 2000)). Accordingly, “[p]ro se litigants must comply with
the same substantive and procedural law to which represented parties must adhere.” Id.
This Court has previously held that “profound deficiencies [like those found in Ms.
Scullark’s appellate brief] render[] appellate review impracticable, if not impossible.” Owen
v. Long Tire, LLC, No. W2011-01227-COA-R3-CV, 2011 WL 6777014, at *4 (Tenn. Ct.
App. Dec. 22, 2011) (citing Missionary Ridge Baptist Church v. Tidwell, No. 89-356-II,
1990 WL 94707, *2 (Tenn. Ct. App. July 11, 1990) (refusing to rely on the brief of the
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appellant because it did not contain references to the record either in the statement of facts
or the argument section of its brief)); see also Bean, 40 S.W.3d at 55 (noting that the “failure
to comply with the Rules of Appellate Procedure and the rules of this Court waives the issues
for review”).
While we are cognizant of the fact that this Court has discretion under Rule 2 of the
Tennessee Rules of Appellate Procedure5 to waive the express briefing requirements for good
cause, we decline to exercise our discretion in this case. “[T]he 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.” Bean, 40 S.W.3d at 54–55 (citing Crowe v.
Birmingham & N.W. Ry. Co., 156 Tenn. 349, 1 S.W.2d 781 (Tenn. 1928)). Given Ms.
Scullark’s failure to comply with Rule 27 of the Tennessee Rules of Appellate Procedure and
Rule 6 of the Tennessee Rules of the Court of Appeals, we decline to address the merits of
this appeal. See Bean, 40 S.W.3d at 55; Duchow v. Whalen, 872 S.W.2d 692, 693 (Tenn. Ct.
App. 1993). Because Ms. Scullark waived any argument on the applicability of Tennessee
Code Annotated Section 29-18-130(b)(2), the trial court’s finding that Ms. Scullark failed
to comply with the statute and its conclusion that non-compliance deprived the court of
subject matter jurisdiction must be affirmed. All other issues are pretermitted.
Conclusion
The judgment of the Circuit Court of Shelby County is affirmed and this cause is
remanded to the trial court for all further proceedings as may be necessary and are consistent
with this Opinion. Costs of this appeal are taxed to Appellant Mia Scullark, and her surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
5
Rule 2 of the Tennessee Rules of Appellate Procedure provides, in relevant part:
For good cause, including the interest of expediting decision upon any matter, the Supreme
Court, Court of Appeals, or Court of Criminal Appeals may suspend the requirements or
provisions of any of these rules in a particular case on motion of a party or on its motion and
may order proceedings in accordance with its discretion.
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