James A. Long v. Charles D. Ledford ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 2, 2016
JAMES A. LONG, ET AL. v. CHARLES D. LEDFORD, ET AL.
Appeal from the Circuit Court for Unicoi County
No. 2015-CV-8130 Jean A. Stanley, Judge
No. E2015-02440-COA-R3-CV-FILED-SEPTEMBER 30, 2016
James A. Long and Patricia Long (“Plaintiffs”) sued Charles D. Ledford and Vivian
Ledford (“Defendants”) with regard to a promissory note. After a trial, the Circuit Court
for Unicoi County (“the Trial Court”) entered a Final Order granting Plaintiffs a
judgment against Defendants for $21,296.01. Defendants appeal to this Court. The
record on appeal contains no transcript and no statement of the evidence. We must
assume that the record had it been preserved would contain sufficient evidence to support
the Trial Court‟s factual findings. We, therefore, affirm.
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 BRANDON O. GIBSON, JJ. joined.
Charles D. Ledford and Vivian Ledford, Erwin, Tennessee, pro se appellants.
James S. Pate, Erwin, Tennessee, for the appellees, James A. Long and Patricia Long.
MEMORANDUM OPINION1
Plaintiffs sued Defendants in the General Sessions Court for Unicoi County
(“General Sessions Court”) with regard to a promissory note. The General Sessions
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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memorandum opinion it shall be designated „MEMORANDUM OPINION,‟ shall not be published, and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.”
Court entered a judgment in favor of Defendants against Plaintiffs2 in the amount of
$20,127.53. Defendants appealed the judgment of the General Sessions Court to the Trial
Court.
After a trial, the Trial Court entered its Final Order on November 24, 2015,
granting Plaintiffs a judgment against Defendants in the amount of $21,296.01 after
finding and holding, inter alia:
This cause came on to be heard . . . upon the appeal from the Unicoi
County General Sessions Court filed by the Defendants, the appearance of
the Plaintiffs and testimony of the Plaintiff, James A. Long, the appearance
of the Defendants, the testimony of the Defendants‟ witnesses, the
statements of the plaintiffs‟ counsel and from the record at large the Court
makes the following findings of facts and conclusions of law:
1. That a promissory note was given from the Defendants to the Plaintiffs
on February 6, 2009, [sic]
2. That there was consideration for that note.
3. That no payment has been made on that note.
4. That the Plaintiffs filed this matter in the General Sessions Court within
the statute of limitations.
5. The total amount owed on the note is $21,296.01.
Defendant Charles D. Ledford3 filed a motion for new trial seeking a new trial due
to the fact that trial was conducted without a court reporter and, therefore, no transcript of
the trial existed. The Trial Court denied the motion for new trial by order entered
December 16, 2015. Defendants timely appeal to this Court.
Although not stated exactly as such, Defendants raise one issue on appeal: whether
the Trial Court erred in holding defendant Charles D. Ledford liable on the promissory
note.4
The record on appeal contains neither a transcript of the trial nor a Tenn. R. App.
P. 24(c) statement of the evidence. Our ability to address the issue raised by Defendants
is severely hampered, if not completely eliminated, by the absence of either a transcript
2
Judgment was entered against plaintiff Vivian Ledford by default and against plaintiff Charles D.
Ledford after a trial.
3
Defendant Vivian Ledford did not join in the motion for new trial.
4
Defendants do not raise any issues on appeal with regard to the judgment entered against Vivian
Ledford.
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of the hearing or a Tenn. R. App. P. 24(c) statement of the evidence documenting the
evidence adduced at the trial. The Trial Court stated in its November 24, 2015 Final
Order that it had heard and considered the testimony of plaintiff James A. Long and the
testimony of Defendants‟ witnesses, among other things, when deciding the issues.
Defendants, as the appellants in this case, had the duty “to prepare a record which
conveys a fair, accurate and complete account of what transpired in the trial court with
respect to the issues which form the basis of the appeal.” Boggs v. Rhea, 459 S.W.3d
539, 546 (Tenn. Ct. App. 2014) (quoting Nickas v. Capadalis, 954 S.W.2d 735, 742
(Tenn. Ct. App. 1997)). “This court cannot review the facts de novo without an appellate
record containing the facts, and therefore, we must assume that the record, had it been
preserved, would have contained sufficient evidence to support the trial court‟s factual
findings.” Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992).
In their reply brief on appeal Defendants allege that they, as pro se parties, were
unaware that they had to hire a court reporter and further allege: “The Clerk of the Courts
[sic] office, Attorney Pate, or Judge Stanley should have had the courtesy to inform me of
this situation and I would have had plenty of time to bring in a Court Reporter.”
Defendants also make allegations that they were treated unfairly because they proceeded
pro se. The record before us on appeal does not support this assertion. As this Court
explained in Murray v. Miracle:
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).
We are not unmindful of Plaintiffs‟ pro se status and have attempted
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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.
Murray v. Miracle, 457 S.W.3d 399, 402 (Tenn. Ct. App. 2014)
We are unable to act as Defendants‟ attorney, as was the Trial Court. For either
court to do so would place Plaintiffs at an unfair and likely insurmountable disadvantage.
Defendants have failed to provide this Court with a record which would allow us to
review the issue Defendants raise on appeal. Furthermore, nothing in the record on
appeal supports Defendants‟ assertion that they were treated unfairly because they were
proceeding pro se. Defendants have failed to comply “with the same substantive and
procedural rules that represented parties are expected to observe.” Id. As Defendants
have not provided us with “a record which conveys a fair, accurate and complete account
of what transpired in the trial court with respect to the issues which form the basis of the
appeal,” we must assume that the record had it been preserved would have contained
sufficient evidence to support the Trial Court‟s factual findings. Boggs, 459 S.W.3d at
546. The Trial Court‟s factual findings sufficiently support the judgment. As such, we
are constrained to affirm the Trial Court‟s November 24, 2015 order.
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants, Charles D. Ledford and Vivian Ledford.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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