James C. Loden, M.D., P.C. d/b/a Loden Vision Centers, and James C. Loden, M. D., Individually v. Gerald Michael Schmidt ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 07, 2015 Session
JAMES C. LODEN, M.D., P.C., d/b/a LODEN VISION CENTERS, and
JAMES C. LODEN, M.D., Individually v. GERALD MICHAEL SCHMIDT
Appeal from the Circuit Court for Davidson County
No. 10C1034 Thomas W. Brothers, Judge1
No. M2014-01284-COA-R3-CV – Filed April 24, 2015
Doctor filed this lawsuit against a former patient, alleging malicious prosecution, tortious
interference, defamation, and intentional infliction of emotional distress. After the patient
refused to respond to discovery, the trial court eventually entered an order striking the
patient‘s answer and entering a default judgment against the patient. The trial court later
awarded the doctor nominal damages and a permanent injunction. Affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded.
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, J., and KENNY ARMSTRONG, J., joined.
Gerald Michael Schmidt, Franklin, Tennessee, Pro se.
James Bryan Lewis, Nashville, Tennessee, for the appellee, James C. Loden, M.D., P.C.,
d/b/a Loden Vision Centers, and James C. Loden, M.D., Individually.
OPINION
1
Other than the final judgment, all orders at issue in this case were entered by Judge Amanda McClendon.
Background
Plaintiff/Appellee Dr. James C. Loden (―Dr. Loden‖) performed LASIK eye surgery2
on Gerald Schmidt (―Mr. Schmidt‖) on May 18, 2007 at Dr. Loden‘s clinic, Loden Vision
Center. Mr. Schmidt contends this caused corneal neuropathy and vitreous floaters in his
eyes. Mr. Schmidt filed two malpractice actions against Dr. Loden, but both were eventually
dismissed.3
In 2008 and 2009, Mr. Schmidt allegedly began posting on Dr. Loden‘s Facebook
page and other internet sites ―warning others about his negative experiences‖ with his LASIK
procedure performed by Dr. Loden. In these posts, Mr. Schmidt allegedly claimed that Dr.
Loden acted improperly with regard to Mr. Schmidt and other patients. Eventually, on March
19, 2010, Dr. Loden, individually and d/b/a Loden Vision Center, filed a complaint against
Mr. Schmidt for malicious prosecution. Dr. Loden granted Mr. Schmidt an extension in
which to file an answer, allowing until approximately May 15, 2010. Counsel for Mr.
Schmidt filed a notice of appearance on April 29, 2010; however, Mr. Schmidt failed to file
an answer by May 15, 2010.
On July 28, 2010, Dr. Loden filed an amended complaint, asserting additional claims
for tortious interference, defamation, and intentional infliction of emotional distress. The
amended complaint alleged that Mr. Schmidt engaged in a pattern of defamatory, harassing,
and sometimes threatening behavior against Dr. Loden and the staff at Loden Vision Center,
which negatively affected Dr. Loden‘s business and made Dr. Loden and his staff fearful of
their safety. On the same day, Dr. Loden filed a request for a temporary injunction
preventing Mr. Schmidt from making defamatory comments about Dr. Loden. Mr. Schmidt
responded in opposition to the motion for temporary injunction on August 3, 2010. The trial
court nevertheless granted the temporary injunction on August 9, 2010.
On January 12, 2011, Mr. Schmidt‘s counsel was permitted to withdraw from the
4
case. On February 25, 2011, Mr. Schmidt, acting pro se, filed an answer to the amended
2
―LASIK‖ is defined as ―[e]ye surgery in which the surface of the cornea is reshaped by a laser, performed to
correct certain refractive disorders.‖ The American Heritage College Dictionary 782 (4th ed. 2002).
3 Mr. Schmidt voluntarily dismissed his first lawsuit. Mr. Loden‘s second lawsuit was dismissed with
prejudice for failure to comply with the requirements of the Tennessee Medical Malpractice Act (now titled the
Tennessee Healthcare Liability Act).
4 After the withdrawal of his counsel, Mr. Schmidt proceeded pro se in the trial court. He is also self-
represented on appeal.
2
complaint, denying the material allegations contained therein. In addition, Mr. Schmidt
asserted that his statements were true, were not communicated with malice, and were
protected by the First Amendment of the United States Constitution. The case languished for
several years; the parties were ordered to attend several status conferences, and the trial court
entered numerous case management orders. Mr. Schmidt also filed a motion to dismiss Dr.
Loden‘s complaint, which was denied by the trial court over a year after the motion was filed.
Discovery disputes are at the center of this appeal. First, on November 20, 2013, Dr.
Loden filed a motion to compel Mr. Schmidt to answer a question propounded to Mr.
Schmidt during his deposition but which Mr. Schmidt refused to answer.5 The trial court
granted Dr. Loden‘s motion to compel on December 20, 2013 and awarded Dr. Loden
$200.00 in discretionary costs as a sanction. Soon thereafter, on January 8, 2014, Dr. Loden
filed a second motion for sanctions against Mr. Schmidt for failure to answer interrogatories
or respond to requests for production of documents. Mr. Schmidt subsequently filed a motion
to be permitted additional time to respond to discovery. On February 14, 2014, however, the
trial court entered an order finding that Mr. Schmidt was timely and properly notified of his
inadequate discovery responses on November 20, 2013, and that he willfully failed to correct
his discovery responses since that date. Accordingly, the trial court awarded Dr. Loden
$1,600.00 in attorney‘s fees as a sanction. The trial court further ordered that Mr. Schmidt
should answer all outstanding discovery requests within thirty days of the entry of its order.
Thirty days passed with no response from Mr. Schmidt. Accordingly, on April 7,
2014, Dr. Loden filed a third motion for sanctions against Mr. Schmidt, indicating that Mr.
Schmidt had neither responded to discovery as ordered nor paid the two prior awards of
sanctions within the time frame set by the trial court. The motion requested that the trial court
strike Mr. Schmidt‘s answer as a discovery sanction pursuant to Rule 37.02 of the Tennessee
Rules of Civil Procedure, or, in the alternative, set a show cause hearing as to why Mr.
Schmidt should not be held in contempt. Dr. Loden also requested attorney‘s fees associated
with the filing of his motion.
The trial court held a hearing on Dr. Loden‘s motion for sanctions on April 25, 2014.
The trial court entered a written order granting Dr. Loden‘s motion on May 21, 2014. In the
order, the trial court found:
5
The question concerned Mr. Schmidt‘s allegation that Dr. Loden falsified the medical records of two patients.
When asked to disclose the names of those persons, Mr. Schmidt answered that he was not ―going to name
names.‖
3
1. [Mr.] Schmidt, failed to file a response to [Dr. Loden‘s] Motion
as required by Davidson County Local Rules of Practice 26.04.6
The [c]ourt finds [Mr. Schmidt] has been advised by this [c]ourt
previously concerning this Local Rule, and [Mr. Schmidt] has
continued to ignore Local Rule 26.04 concerning timely
responses to motions.
2. The [c]ourt finds the [Mr. Schmidt] has consistently ignored the
Tennessee Rules of Civil Procedure as they relate to discovery,
and this [c]ourt has previously sanctioned [Mr. Schmidt] on
December 20, 2013 and February 14, 2014 as a result of non-
compliance with discovery.
3. The [c]ourt finds the [Mr. Schmidt] has purposely ignored this
[c]ourt‘s order of February 14, 2014 to answer Plaintiffs'
discovery request and has been in direct violation of this
[c]ourt‘s order for over two (2) months. The [c]ourt finds the
Defendant was advised by Special Master Mary Ashley Nichols
on April 7, 2014 to comply with the [c]ourt‘s order of February
14, 2014, and [Mr. Schmidt] purposely [sic] continued to ignore
and violate this [c]ourt‘s order.
4. Based on [Mr. Schmidt‘s] consistent and willful pattern of
ignoring this [c]ourt‘s orders as it relates to the discovery
process in this ease, as well as [Mr. Schmidt‘s] repeated and
willful conduct of disregarding Local Rule 26.04, the [c]ourt
finds the [Dr. Loden‘s] Motion shall be granted and the [Mr.
Schmidt‘s] Answer struck from the record. [Dr. Loden] shall be
granted a default judgment and a hearing for damages shall be
held on June 3, 2014 at 9:00 a.m.
5. [Dr. Loden‘s] attorney . . . shall be awarded One Thousand Two
Hundred Dollars ($1,200.00) in attorney's fees as a sanction
against [Mr.] Schmidt, which fees are supported by the Affidavit
attached to this Order. The [c]ourt hereby finds that the
$1,200.00 award of attorney‘s fees is a judgment for which
6
Davidson County Local Rule of Practice 26.04(d) states that if a motion is opposed:
[A] written response to the motion must be filed and personally served on all
parties. The response shall state with particularity the grounds for opposition
to the motion, supported by legal authority, if applicable. If no response is
filed, the motion shall be granted with the exception of certain proceedings
in Probate.
4
execution may issue if necessary after thirty (30) days of the
entry of this Order.
Thus, the trial court simultaneously struck Mr. Schmidt‘s answer and entered a default
judgment against him for failure to file an answer to the amended complaint.
The trial court held a hearing on damages on June 3, 2014. On the same day, the trial
court entered a written order awarding Dr. Loden $1.00 in nominal damages, and a
permanent injunction barring Mr. Schmidt and his agents or assigns:
[F]rom contacting or attempting to contact any prospective,
current, or past patient of [Dr.] Loden [] or Loden Vision
Centers via Facebook or any other internet site or any other
medium of communication including, but not limited to, the
internet, U.S. mail, telephone, facsimile, in-person or any other
means of communication for the purpose of interfering with said
patients‘ business relationship with [Dr.] Loden [] or Loden
Vision Centers. [Mr.] Schmidt shall be allowed to make postings
on the internet under his own name and can make any posting
about any aspect of Lasik surgery as long as [Mr.] Schmidt does
not mention in any way Dr. James C. Loden or Loden Vision
Centers.
Further, the trial court enjoined Mr. Schmidt and his agent or assigns from making any untrue
or defamatory statements regarding Dr. Loden or Loden Vision Center, or making harassing
or threatening communications to Dr. Loden, Loden Vision Center, or any employees or
agent of Loden Vision Center. Mr. Schmidt filed a timely notice of appeal.
Analysis
Mr. Schmidt raises one issue for review, namely: ―Whether the Second Circuit Court
of Davidson County erred by granting a default judgment against [Mr. Schmidt] and granting
[Dr. Loden] a permanent injunction when [Dr. Loden‘s] unmeritorious charges of malicious
prosecution, tortious interference, and defamation were never heard on the merits.‖ Before
addressing the substantive arguments raised by Mr. Schmidt, we first must discuss the
deficiencies in Mr. Schmidt‘s appellate brief.
We recognize that Mr. Schmidt is proceeding pro se in this appeal and, therefore, may
not be fully familiar in the Rules of this Court. Accordingly, we keep in mind the following
5
guidance in considering Mr. Loden‘s brief:
Parties who decide to represent themselves are entitled to
fair and equal treatment by the courts. The courts should take
into account that many pro se litigants have no legal training and
little familiarity with the judicial system. 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.
The courts give pro se litigants who are untrained in the
law a certain amount of leeway in drafting their pleadings and
briefs. Accordingly, we measure the papers prepared by pro se
litigants using standards that are less stringent than those applied
to papers prepared by lawyers.
* * *
Even though the courts cannot create claims or defenses for pro
se litigants where none exist, they should give effect to the
substance, rather than the form or terminology, of a pro se
litigant‘s papers.
Hessmer v. Hessmer, 138 S.W.3d 901, 903–04 (Tenn. Ct. App. 2003) (internal citations
omitted); see also Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003); 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).
Rule 27 of the Tennessee Rules of Appellate Procedure contains the mandatory
contents for an appellate brief. Relevant to this appeal, Rule 27 provides:
(a) Brief of the Appellant. The brief of the appellant shall
contain under appropriate headings and in the order here
indicated:
* * *
(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
6
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); . . . .
* * *
(i) Page Limitations. Except by order of the appellate court or a
judge thereof, arguments in principal briefs shall not exceed
50 pages, and arguments in reply briefs shall not exceed 25
pages.
Tenn. R. Civ. P. 27 (some emphasis added).
Mr. Loden‘s brief is deficient in two respects. First, the argument section of Mr.
Schmidt‘s appellate brief totals sixty-six pages. Clearly, Rule 27(i) mandates that the
arguments section of briefs filed with this Court not exceed fifty pages; accordingly, Mr.
Schmidt failed to comply with this mandate.
Even more importantly, Mr. Loden‘s appellate brief contains no references to the trial
record, either in the statement of facts or argument sections of his brief. The obligation to
provide appropriate references to the record is not a mere technicality, but instead promotes
the important consideration of judicial economy. ―[T]his Court is under no duty to blindly
search the record in order to find ... evidence to support [Mr. Schmidt‘s arguments].‖
Pearman v. Pearman, 781 S.W.2d 585, 588 (Tenn. Ct. App. 1989) (citations omitted). Our
courts have repeatedly held that the failure to make appropriate references to the record on
appeal may result in a waiver of the argument on appeal. See, e.g., Forbess v. Forbess, 370
S.W.3d 347, 355 (Tenn. Ct. App. 2011); Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct.
App. 2009); Lett v. Collis Foods, Inc., 60 S.W.3d 95, 105 (Tenn. Ct. App. 2001); Bean v.
Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000); Rampy v. ICI Acrylics, Inc., 898 S.W.2d
196, 210 (Tenn. Ct. App. 1994). Mr. Schmidt‘s complete failure to provide any references to
the record as required by the Tennessee Rules of Appellate Procedure, especially given the
7
trial court‘s finding that Mr. Loden willfully failed to comply with the Tennessee Rules of
Civil Procedure, is troubling to this Court.
This Court may have been inclined to overlook these deficiencies given Mr. Schmidt‘s
pro se status. However, another deficiency in Mr. Schmidt‘s appellate brief is fatal to his
appeal. As previously discussed, while Mr. Schmidt raises as an issue the trial court‘s
decision to grant a default judgment to Dr. Loden, he cites no authority regarding default
judgments or discovery sanctions in his appellate brief. Instead, Mr. Loden appears to argue
that Dr. Loden was not entitled to a default judgment because he could not prevail in his
underlying malicious prosecution, tortious interference, defamation, and intentional infliction
of emotional distress claims had a trial on the merits been conducted. Respectfully, whether
Dr. Loden could have prevailed in a trial on the merits is not at issue in this appeal. The only
issue appropriately reviewable is whether the trial court appropriately struck Mr. Schmidt‘s
answer as a discovery sanction, leading to the entry of a default judgment in Dr. Loden‘s
favor.7
Mr. Schmidt‘s appellate argument appears to be based upon a misapprehension of
what a default judgment means. Accordingly, a brief review of the law surrounding discovery
sanctions and default judgments is appropriate. Discovery sanctions are governed by Rule
37.02 of the Tennessee Rules of Civil Procedure. Rule 37 provides that if a party ―fails to
obey an order to provide or permit discovery . . . the court in which the action is pending may
make such orders in regard to the failure as are just[.]‖ Rule 37.02 provides a ―broad but not
exclusive list of sanctions available to a trial court when a party fails to obey an order
compelling discovery.‖ Dhillon v. Dhillon, No. M2009-00017-COA-R3-CV, 2010 WL
1254365, at *9 (Tenn. Ct. App. Mar. 31, 2010); Magness v. Couser, No. M2006-00872-
COA-R3-CV, 2008 WL 204116, at *6 (Tenn. Ct. App. Jan. 24, 2008). Of the actions the
court may take to punish a discovery violation, one of the most significant is the power to
strike pleadings and enter default judgment. Specifically, the court is allowed to enter ―[a]n
order striking out pleadings or parts thereof, or staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment
by default against the disobedient party; . . . .‖ Tenn. R. Civ. P. 37.02(C). ―Although this
sanction is extreme, it is appropriate ‗where there has been a clear record of delay or
contumacious conduct.‘‖ Amanns v. Grissom, 333 S.W.3d 90, 99 (Tenn. Ct. App. 2010)
(quoting Potts v. Mayforth, 59 S.W.3d 167, 171 (Tenn. Ct. App. 2001) (quoting Shahrdar v.
Global Hous. Inc., 983 S.W.2d 230, 236 (Tenn. Ct. App. 1998) (internal citations omitted))).
7 Although not designated as an issue, Mr. Schmidt also raises an argument regarding the constitutionality of
the injunction entered by the trial court. We discuss this argument briefly, infra.
8
By its plain language, the provisions of Rule 37.02 primarily apply to sanctions for
non-compliance with a court order. Alexander v. Jackson Radiology Assocs., P.A., 156
S.W.3d 11, 15 (Tenn. Ct. App. 2004) (citing Lyle v. Exxon, 746 S.W.2d 694, 698–99
(Tenn.1988)). However, trial courts also possess the inherent authority to order sanctions as
necessary to prevent abuse of the discovery process. Alexander, 156 S.W.3d at 15 (citing
Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 133 (Tenn. 2004)). The purpose of Rule
37.02 was explained by this Court:
The discovery rules would be ineffectual if courts did not have
the authority to impose sanctions for their abuse. Thus, the
Tennessee Rules of Civil Procedure authorize serious sanctions
against persons who seek to evade or thwart full and candid
discovery, including being found in contempt, having designated
facts be taken as established, striking pleadings, dismissing an
action or claim or granting a judgment by default, or assessing
expenses and attorneys' fees. These sanctions serve a three-fold
purpose: (1) to secure a party's compliance with the discovery
rules, (2) to deter other litigants from violating the discovery
rules, and (3) to punish parties who violate the discovery rules.
Mansfield v. Mansfield, No. 01A019412CH0058, 1995 WL 643329, at *5 (Tenn. Ct. App.
Nov. 3, 1995) (citations omitted). The question of whether a trial court has imposed an
appropriate discovery sanction is reviewed under the abuse of discretion standard. Griffith
Services Drilling, LLC v. Arrow Gas & Oil, Inc., 448 S.W.3d 376, 379 (Tenn. Ct. App.
2014) (citing Cincinnati Ins. Co. v. Mid-South Drillers Supply, Inc., No. M2007-00024-
COA-R3-CV, 2008 WL 220287, at *3–4 (Tenn. Ct. App. Jan. 25, 2008)).
Here, the trial court specifically found that Mr. Schmidt willfully and repeatedly failed
to respond to discovery requests, despite being well-informed of his duty to do so.
Accordingly, the trial court entered a default judgment against Mr. Schmidt. Default
judgments are governed by Rule 55.01 of the Tennessee Rules of Civil Procedure, which
provides, in pertinent part: ―When a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend as provided by these rules and that fact is
made to appear by affidavit or otherwise, judgment by default may be entered . . . .‖ As
recently explained by this Court:
Judgment by default (previously called judgment pro
confesso) is an expediting procedure which acts as a deterrent to
defending parties resorting to delay as an element of their
9
litigation strategy. Generally, a default judgment is sought by a
party seeking ―affirmative relief‖ when his adversary fails to
properly and timely respond to an initial pleading....
Generally, the entry of a default judgment has the
effect of an answer admitting the well-pleaded material
allegations of fact contained in the adversary's pleading and
fair inferences therefrom . . . .
In addition to creating admissions as to factual statements
in prior unanswered pleadings, the default judgment has a
second important purpose: ―to record that time for pleadings has
past; that one party has failed to plead; but that the case may
proceed to trial without waiting for delinquent parties.‖
H.G. Hill Realty Co., L.L.C. v. Re/Max Carriage House, Inc., 428 S.W.3d 23, 30 (Tenn. Ct.
App. 2013) (emphasis added) (quoting Lawrence A. Pivnick, Tennessee Circuit Court
Practice, § 27.2 (2012) (footnotes omitted)). Thus, a default judgment is ―a final order
disposing of a case on its merits, like any other judgment.‖ H.G. Hill Realty, 428 S.W.3d at
30. The standard of review of the entry of a default judgment is likewise an abuse of
discretion. See Tenn. Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863, 866 (Tenn. 1985).
In his appellate brief, Mr. Schmidt argues nothing regarding the trial court‘s decision
to impose the extreme sanction of a default judgment due to his failure to comply with
discovery orders. In addition, Mr. Schmidt‘s brief contains no citation to authority regarding
discovery sanctions, default judgments, or the standard of review applicable in this case. See
Tenn. R. App. P. 27(a)(7(B) (requiring that the appellant include in her or her appellate brief
―for each issue, a concise statement of the applicable standard of review‖). Furthermore, Mr.
Schmidt appears to misapprehend the practical effect of a default judgment. Here, he argues
that Dr. Loden failed to ―provide proof via discovery‖ to support his allegations of malicious
prosecution, tortious interference, defamation, and intentional infliction of emotional distress.
However, as previously discussed, the entry of a default judgment ―has the effect of an
answer admitting the well-pleaded material allegations of fact contained in the adversary's
pleading and fair inferences therefrom.‖ H.G. Hill Realty, 428 S.W.3d at 30 (quoting
Tennessee Circuit Court Practice, § 27.2). Dr. Loden‘s complaint contains well-pleaded
allegations that Mr. Schmidt incessantly harassed Dr. Loden and his staff, engaged in an
untrue ―smear campaign‖ against Dr. Loden, defamed Dr. Loden to potential patients on the
internet, threatened Dr. Loden, and engaged in other inappropriate behavior directed toward
Dr. Loden and his staff. Regardless of any proof, the default judgment resulted in these facts
being admitted as if a trial on the merits had been conducted that substantiated these claims.
H.G. Hill Realty, 428 S.W.3d at 30. While asserting a meritorious defense may be one
10
element in deciding whether a trial court should have set aside a default judgment, see
Reynolds v. Battles, 108 S.W.3d 249, 252 (Tenn. Ct. App. 2003), Mr. Schmidt did not
request this relief in the trial court, nor has he addressed any of the other elements required to
obtain this relief in his appellate brief. 8 Accordingly, Mr. Schmidt‘s contention that the
allegations in the amended complaint are not supported by evidence is irrelevant to the
question of whether the trial court properly entered a default judgment against Mr. Schmidt
as a discovery sanction.
In conclusion, Mr. Schmidt does not argue in his appellate brief that the trial court
abused its discretion in finding that Mr. Schmidt‘s discovery violations warranted the
extreme sanction of default judgment. In addition, nothing filed by Mr. Schmidt in the trial
court nor in this Court may be fairly construed as a request to set aside the default judgment
entered by the trial court. As previously discussed, this Court cannot construct a party‘s
argument or assert new or additional claims for the party, even where that party is proceeding
pro se. Hessmer, 138 at 903–04; see also Heilig v. Heilig, No. W2013-01232-COA-R3-CV,
2014 WL 820605, at *7 (Tenn. Ct. App. 2014) (Kirby, J., dissenting in part) (―[A]ll litigants,
including pro se litigants, must give us the information necessary to address the issue on
appeal without searching the record and constructing an argument for the litigant.‖).
Furthermore, even though an issue may be raised in the issues section of a party‘s brief, the
failure to argue the issue and cite appropriate legal authority in the argument section of the
brief will result in a waiver of the issue on appeal. See Hodge v. Craig, 382 S.W.3d 325, 335
(Tenn. 2012) (―An issue may be deemed waived, even when it has been specifically raised as
an issue, when the brief fails to include an argument satisfying the requirements of Tenn. R.
App. P. 27(a)(7).‖); Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001) (―Where a
party makes no legal argument and cites no authority in support of a position, such issue is
deemed to be waived and will not be considered on appeal.‖). Consequently, we must
conclude that the dispositive issue in this case, whether the trial court appropriately entered a
default judgment against Mr. Schmidt as a discovery sanction, has been waived.
Finally, we note that in addition to his argument regarding Dr. Loden‘s failure to
prove the allegations contained in the amended complaint, Mr. Schmidt argues that the
injunction entered by the trial court violates his right to free speech under the First
Amendment of the United States Constitution. The constitutionality of the trial court‘s order
was not specifically raised in Mr. Schmidt‘s statement of the issues section of his appellate
8
The other elements used to determine whether a trial court should have set aside a default judgment involve
whether the default was willful and the amount of prejudice that may result to the non-defaulting party if the
default judgment is set aside. Reynolds, 108 S.W.3d at 252 (citing Tenn. Dep't of Human Serv. v. Barbee,
689 S.W.2d 863, 866 (Tenn.1985)).
11
brief. This Court has previously determined a party‘s failure to designate an argument as an
issue in the statement of issues section of the party‘s appellate brief results in a waiver on
appeal. E.g., Forbess v. Forbess, 370 S.W.3d 347, 356 (Tenn. Ct. App. 2011); see also Tenn.
R. App. P. 13(b) (―Review generally will only extend to those issues presented for review.‖).
We note, however, that Mr. Schmidt did raise this issue in his answer to the amended
complaint. Given Mr. Schmidt‘s pro se status, and in the interest of a full and fair
adjudication of this appeal, we exercise our discretion under Rule 2 of the Tennessee Rules
of Appellate Procedure to briefly address this argument.9 Tenn. R. App. P. (―For good cause,
including the interest of expediting decision upon any matter, the . . . Court of 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.‖).
In his brief, Mr. Schmidt argues that the trial court‘s injunction constitutes an
impermissible prior restraint on speech. To support this argument, Mr. Schmidt cites several
federal decisions wherein federal courts have held that damages are the only appropriate
remedy in defamation cases. See, e.g., Alexander v. U.S., 509 U.S. 544, 550, 113 S. Ct. 2766
(1993) (―Temporary restraining orders and permanent injunctions— i.e., court orders that
actually forbid speech activities—are classic examples of prior restraints.‖); Org. for a Better
Austin v. Keefe, 402 U.S. 415, 91 S. Ct. 1575 (1971) (reversing injunction preventing
defendant from distributing leaflets concerning real estate broker‘s business practices).
An impermissible ―prior restraint‖ exists when the exercise of First Amendment rights
depends upon prior approval of public officials. Deja Vu of Nashville, Inc. v. Metro. Gov’t
of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001), cert. denied 535 U.S.
1073, 122 S. Ct. 1952, 152 L. Ed. 2d 855 (2002). A system creating prior restraints bears a
heavy presumption against its constitutional validity. Id. (citing Freedman v. Maryland, 380
U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965)). In the context of protected speech, ―‗prior
restraint‘ is a label used in constitutional law to describe administrative or judicial orders that
forbid a communication when issued in advance of the time that the communication is to
occur: Governmental action constitutes a prior restraint when it is directed to suppressing
speech because of its content before the speech is communicated.‖ 2 J. Thomas McCarthy,
Rights of Publicity and Privacy § 11:24 Injunctions–Prior Restraint Rule (2d ed.).
Accordingly, the First Amendment of the United States Constitution, and Article I, Section
19 of the Tennessee Constitution, provide broad protections to prevent the abridgment of a
9
We note that Our decision to ―soldier on‖ in spite of Mr. Schmidt‘s failure to properly raise this issue
should not be construed as an indication that waiver does not typically apply in this situation. We caution
litigants that although we have reviewed the issue in this case, we may not be as forgiving in the future.
12
person's right to freedom of speech. These protections require the application of strict
scrutiny review when a court is presented with the question of whether a person's
fundamental rights, such as freedom of speech, have been infringed. See generally San
Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 16, 93 S. Ct. 1278, 36 L. Ed. 2d 16
(1973). Strict scrutiny requires that the restraint on speech be ―narrowly tailored to serve a
compelling governmental interest.‖ Pleasant Grove City, Utah v. Summum, 555 U.S. 460,
469, 129 S. Ct. 1125, 172 L. Ed. 2d 853 (2009).
The traditional rule advanced by Mr. Schmidt states that ―equity does not enjoin a libel
or slander and that the only remedy for defamation is an action for damages.‖ See, e.g.,
Lothschuetz v. Carpenter, 898 F.2d 1200, 1206 (6th Cir. 1990) (quoting Cmty. for Creative
NonViolence v. Pierce, 814 F.2d 663, 672 (D.C.Cir. 1987)). Injunctions to enjoin a libel are
traditionally disfavored under both common-law and First Amendment prior restraint
doctrines. See, e.g., Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967); Parker v. Columbia
Broad. Sys., Inc., 320 F.2d 937 (2d Cir.1963); Crosby v. Bradstreet Co., 312 F.2d 483 (2d
Cir. 1963); Kukatush Min. Corp. (N.P.L.) v. SEC, 309 F.2d 647 (D.C. Cir. 1962); Robert E.
Hicks Corp. v. Nat’l Salesmen’s Training Ass’n, 19 F.2d 963 (7th Cir. 1927); Konigsberg v.
Time, Inc., 288 F. Supp. 989 (S.D.N.Y.1968); Am. Broad.Cos., Inc. v. Smith Cabinet Mfg.
Co., Inc., 312 N.E.2d 85 (Ind. 1974); Greenberg v. De Salvo, 229 So. 2d 83 (La. 1969);
Krebiozen Research Found. v. Beacon Press, Inc., 334 Mass. 86, 134 N.E.2d 1 (Mass.
1956); Willing v. Mazzocone, 393 A.2d 1155 (Pa. 1978); Pirmantgen v. Feminelli, 745
S.W.2d 576 (Tex. Ct. App. 1988); Pierce, 814 F.2d at 672. From our research, however, a
trend has emerged in both state and federal courts allowing injunctions against speech that
has been determined to be false by a fact-finder. See Lothschuetz v. Carpenter, 896 F.2d
1200 (6th Cir.1990); Lassiter v. Lassiter, 456 F. Supp. 2d 876, 884 (E.D.Ky. 2006); Auburn
Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993); Balboa Island Village Inn, Inc.
v. Lemen, 156 P.3d 339, 320 (Cal. 2007), as modified, (Apr. 26, 2007); Retail Credit Co. v.
Russell, 218 S.E.2d 54, 62–63 (Ga. 1975); Hill v. Petrotech Res. Corp., 325 S.W.3d 302,
307 (Ky. 2010); Advanced Training Sys., Inc. v. Caswell Equip. Co., Inc., 352 N.W.2d 1, 11
(Minn.1984); Sid Dillon Chevrolet–Oldsmobile–Pontiac, Inc. v. Sullivan, 251 Neb. 722,
559 N.W.2d 740, 733 (Neb. 1997); O’Brien v. Univ. Cmty. Tenants Union, Inc., 42 Ohio
St.2d 242, 327 N.E.2d 753, 755 (Ohio 1975); Kramer v. Thompson, 947 F.2d 666, 676 (Pa.
1991).
This Court recently adopted what it deemed the ―more modern rule‖ allowing
injunctions against defamatory speech in In re Conservatorship of Turner, No. M2013-
01665-COA-R3-CV, 2014 WL 1901115 (Tenn. Ct. App. 2014) (no perm. app. filed). Turner
involved a conservatorship action over the parties‘ mentally-disabled adult son. Id. at *1. The
son‘s mother continued to levy what the trial court found to be meritless attacks against the
13
parties‘ older son regarding abuse of the son at issue in the conservatorship proceeding. The
trial court found that the attacks were both false and made for a harmful purpose, and entered
an injunction preventing the mother from claiming that her older son was guilty of any
criminal conduct or entering into any dialog with the younger son regarding ―her insinuation
that he has somehow been physically probed or someone has carnal knowledge of him
specifically his [brother].‖ Id. at *6. After thoroughly considering the prevailing law on the
issue, this Court held that ―defamatory speech may be enjoined after a determination that the
speech is, in fact, false.‖ Id. at *20.
We note that in Turner, the trial court‘s determination that the mother‘s allegations
were false came after myriad hearings wherein the trial court determined that the mother‘s
allegations were false and calculated to cause harm. See id. at *2–*7. The Turner Court
recognized, however, that there was some ―leeway‖ with regard to whether a full evidentiary
hearing on the issue of the defamation was required based upon the decision in Lothschuetz
v. Carpenter, 898 F.2d 1200 (6th Cir. 1990). In Lothschuetz, the plaintiffs filed a defamation
and malicious prosecution action against the defendants. Lothschuetz, 898 F.2d at 1203.
Much like in this case, the trial court eventually entered a default judgment against the
defendants on the issue of liability, after their repeated failure to respond to discovery
requests. Id. at 1204. The default resulted in the substantiation of the plaintiffs‘ claim that the
statements were false. Id.; see also Hill, 325 S.W.3d at 309 (describing the default judgment
in Lothschuetz as a ―final[] adjudicati[on] [that] the complained of statements [were] false‖).
The trial court, however, refused to grant the plaintiff‘s request for a permanent injunction
preventing the defendants from continuing their defamatory statements, concluding that such
an injunction was an impermissible prior restraint on speech.
In a split decision, the United States Court of Appeals for the Sixth Circuit reversed,
concluding that because of the defendants‘ continuing defamation of the plaintiffs, a
permanent injunction preventing the defendants from making ―statements which have been
found in this and prior proceedings to be false and libelous‖ was appropriate. Lothschuetz,
898 F.2d at 1208–09. Importantly, the Sixth Circuit based its determination that the defendant
had made ―frequent and continuing defamatory statements‖ on the basis of a default
judgment, and neither the majority, nor the dissent appeared to question that such finding
could be established by default.10 Id. at 1209. Thus, the determination that statements were
false and defamatory may be based upon an adjudication that results from the entry of a
default judgment.
10 Judge Ralph B. Guy dissented based on his view that the court should apply the traditional view that
injunctions are simply not available remedies in defamation cases. Lothschuetz, 898 F.2d at 1206.
14
Much like in Lothschuetz, the trial court entered a default judgment against Mr.
Schmidt due to his repeated discovery violations. Entry of the default judgment resulted in
Dr. Loden‘s allegations that Mr. Schmidt made repeated false and defamatory statements
about Dr. Loden, his staff, and Loden Vision Center being admitted as if a trial on the merits
had been conducted. See H.G. Hill Realty, 428 S.W.3d at 30. Thus, for the purpose of this
case, Mr. Schmidt‘s statements were determined to be false. As such, Turner‘s requirement
that an injunction be entered only ―after a determination that the speech is, in fact, false‖ has
been met in this case. Id. at *20. As such, the prior restraint on Mr. Schmidt‘s speech is not
impermissible.11
Based on the foregoing, we conclude that the trial court did not err in entering a
default judgment against Mr. Schmidt as a result of his discovery violations. Moreover, we
conclude that the trial court‘s entry of a permanent injunction against Mr. Schmidt does not
amount to a constitutionally impermissible prior restraint on speech. The judgment of the trial
court is, therefore, affirmed.
Conclusion
The judgment of the Circuit Court of Davidson County is affirmed, and this cause is
remanded to the trial court for further proceedings consistent with this Opinion. Costs of this
appeal are taxed to Appellant, Gerald Michael Schmidt. Because Gerald Michael Schmidt is
proceeding in forma pauperis in this appeal, execution may issue for costs if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
11
Turner makes clear that even a proper prior restraint on speech may be reversed on appeal where it is
unconstitutionally broad and not narrowly tailored to survive strict scrutiny. See Turner, 2014 WL 1901115, at
*20. Nothing in Mr. Schmidt‘s appellate brief can be fairly characterized as an argument that the injunction, if
found to be permissible as a prior restraint, is overly broad. Accordingly, any question regarding whether the
injunction is overly broad is waived.
15