Jon Vazeen v. US Med ( 2020 )

12/22/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 2, 2020
JON VAZEEN v. US MED
Appeal from the Circuit Court for Knox County
No. 3-439-17 Deborah Stevens, Judge
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No. E2019-01562-COA-R3-CV
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Pro se appellant appeals the trial court’s involuntary dismissal of this action pursuant to
Tennessee Rule of Civil Procedure 41.02(2). Due to the deficiencies in the appellant’s
brief, we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and W. NEAL MCBRAYER, J., joined.
Jon Vazeen, Knoxville, Tennessee, pro se.
Lyndsey L. Lee and Joshua M. Ball, Knoxville, Tennessee, for the appellee, US MED.
OPINION
I. BACKGROUND
Mr. Jon Vazeen, an inventor, artist, and mathematics professor at the University of
Tennessee (“Plaintiff”), commenced this action against the medical supply company US
MED on November 27, 2017. He alleged that “around mid-August 2016, [US MED] sent
Plaintiff a wrong type and cheaply made catheters,” gave him the runaround when he called
US MED, and “failed to ship the catheters” that Plaintiff had requested before he departed
for a business trip abroad in mid-November of 2016. Plaintiff further alleged that
“[e]ventually, [he] was forced to get a prescription abroad and pay a total of $2300 out of
his own pocket for a 3-month supply of the medical device,” which would have been
covered by Medicare had the catheters been purchased in the United States. Plaintiff
requested that the trial court award him “the $2300 direct cost of the medical supplies, [his]
psychological/physiological injuries, court costs, attorney fees[1] and, the endless hours
that [he] was forced to spend on this case.” Upon US MED’s motion for a more definite
statement, Plaintiff amended the complaint to allege that he was entitled to a judgment of
$5,000,000 for “direct and punitive damages.”
Following several discovery disputes, the trial court entered a scheduling order on
September 14, 2018. Therein, the trial court noted that it had strongly encouraged Plaintiff
to seek legal representation and reminded Plaintiff of his burden to prove both US MED’s
liability and the nature and extent of any injuries claimed as a result of US MED’s actions.
The court further instructed Plaintiff that he would “still be required to comply with the
Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence in the
presentation of his case.”2 During the discovery conference preceding this order, Plaintiff
informed the trial court that he had not received any medical care or treatment for stress or
psychological injuries and that, at trial, he would not present medical proof from either a
treating physician or an expert witness.
On September 25, 2018, Plaintiff filed a “Motion to Supplement Plaintiff’s Charges
Against Defendant” claiming “that his business sustained damages because [he] was forced
to redirect his time/energy toward dealing with the consequences of Defendant US MED’s
failure to supply catheters/correct type of catheters.”
Pursuant to Tennessee Rule of Civil Procedure 38.05, the trial court denied
Plaintiff’s untimely demand for a jury trial. The case proceeded to a bench trial held on
July 30, 2019. Neither party had a court reporter present, so there is no trial transcript in
the appellate record. It is undisputed that Plaintiff was permitted to testify at length, call
US MED’s corporate representative as a witness, enter many exhibits, and testify about
what he claimed the exhibits showed. Certain exhibits were excluded for failure to comply
with the Rules of Evidence or failure to comply with the scheduling order or because they
had not been produced during discovery. After Plaintiff completed the presentation of his
evidence, US MED moved for an involuntary dismissal, pursuant to Tennessee Rule of
Civil Procedure 41.02. The trial court granted US MED’s motion under Rule 41.02(2)
because “Plaintiff provided no evidence of any applicable standard of care and failed to
provide any evidence that the actions of [US MED] fell below the applicable standard of
care so as to breach a duty to the Plaintiff.” The court found that Plaintiff failed to prove
that he sustained any damages due to US MED’s alleged negligence or breach of contract,
and failed to present any evidence upon which the trial court could make a fair and
reasonable assessment of damages for alleged anxiety and stress. On August 2, 2019, the
trial court entered detailed findings of fact and conclusions of law, and entered judgment
in US MED’s favor.
1
Plaintiff has proceeded pro se throughout this litigation.
2
The trial court so instructed Plaintiff on numerous occasions before trial.
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On August 15, 2019, Plaintiff filed a “Motion to Reconsider (Alternatively) Recusal
Motion,” which was denied for multiple reasons, including untimeliness and failure to
comply with Rule 10B of the Rules of the Tennessee Supreme Court. Plaintiff appealed
from the trial court’s August 2, 2019 order on September 3, 2019. Pursuant to Tennessee
Rule of Appellate Procedure 24(c), Plaintiff filed a statement of the evidence, to which US
MED objected. By order entered January 7, 2020, the trial court found that Plaintiff’s
statement of the evidence largely “reflects what [he] wanted to say [at trial], but does not
reflect what was admitted into evidence and therefore is not a ‘fair, accurate and complete
account of what transpired with respect to those issues,’ as required by Rule 24(c).”
Subject to the trial court’s many corrections to Plaintiff’s statement of the evidence, US
MED’s objections were overruled.
II. ISSUES
On appeal, Plaintiff’s statement of the issues presented for review reads:
1) Whether the verbal agreement between [US MED and Plaintiff] and its
written certifications constituted a contract?
2) Whether US MED breached the contract when [it] failed to supply around
900 catheters?
3) Whether [Plaintiff] sustained damages as a result of [US MED] breaching
the contract?
4) Whether the trial court erred in dismissing the case?
III. STANDARD OF REVIEW
We review a trial court’s disposition of a motion made under Tennessee Rule of
Civil Procedure 41.02(2) under the standard set forth in Tennessee Rule of Appellate
Procedure 13(d), which provides that, in a civil case tried without a jury, we review the
trial court’s findings of fact de novo with a presumption of correctness unless the
preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Burton v. Warren
Farmers Co-op., 129 S.W.3d 513, 521 (Tenn. Ct. App. 2002). We review questions of law
de novo with no presumption of correctness. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d
625, 628 (Tenn. 1999). “We give great weight to the trial court’s assessment of the
evidence because the trial court is in a much better position to evaluate the credibility of
the witnesses.” Burton, 129 S.W.3d at 521 (citing Thompson v. Adcox, 63 S.W.3d 783,
787 (Tenn. Ct. App. 2001)).
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IV. DISCUSSION
“Pro se litigants who invoke the complex and technical procedures of the courts
assume a very heavy burden.” Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct.
App. 1988). Although a party who chooses to represent himself or herself is entitled to the
fair and equal treatment of the courts, Hodges v. Tenn. Att’y Gen., 43 S.W.3d 918, 920
(Tenn. Ct. App. 2000), “[p]ro se litigants are not . . . entitled to shift the burden of litigating
their case to the courts.” Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App.
2000). Instead, pro se litigants are held to the same procedural and substantive standards
to which lawyers must adhere. Diggs v. Lasalle Nat’l Bank Assoc., et al., 387 S.W.3d 559,
563 (Tenn. Ct. App. 2012); Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003).
US MED urges this court to hold that Plaintiff has waived the issues on appeal
because his brief substantially fails to comply with the Rules of Appellate Procedure. We
agree that Plaintiff’s brief and reply brief contain several deficiencies which flout the
applicable Rules and hinder our ability to ascertain the gravamen of his arguments.
First, Plaintiff repeatedly refers to matters that are not within the appellate record,
most of which he cites as “(TR*),” and to exhibits that were deemed inadmissible at trial.3
This court considers the materials that are properly in the record from the trial court. See
Tenn. R. App. P. 24(g); Reid v. Reid, 388 S.W.3d 292, 294 (Tenn. Ct. App. 2012) (“[W]e
may only consider the record from the trial court.”); Richmond v. Richmond, 690 S.W.2d
534, 535 (Tenn. Ct. App. 1985) (“This is a court of errors and appeals in which matters
below are reviewed when presented by a duly authenticated record brought to this court
pursuant to the Tennessee Rule[s] of Appellate Procedure.”).
Second, Plaintiff fails to cite any relevant authority in his argument, aside from cases
outlining the applicable standard of review.4 “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); see also Hawkins v. Hart, 86 S.W.3d 522,
531 (Tenn. Ct. App. 2001) (“[F]or an issue to be considered on appeal, a party must, in his
brief, develop the theories or contain authority to support the averred position . . . .”). The
aforementioned problems were brought to Plaintiff’s attention because they were identified
in US MED’s brief. Instead of correcting them, Plaintiff declares that “the citation of
3
The admissibility of these exhibits was not raised as an issue on appeal. See Tenn. R. App. P. 27(g).
4
The only authority that Plaintiff cites in the subsection of the Statement of Facts entitled “The Contract”
is Tennessee Code Annotated section 47-50-109, which codifies the tort of inducement of breach of contract
and is wholly inapplicable to this case.
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references is irrelevant in cases where the course of action is absolute. Here, absolute
means that only one course of action is possible.” While acknowledging the “procedural
requirement” of supporting his arguments with citation to relevant authority, Plaintiff
maintains that doing so “has no valuable and/or practical use here and therefore does not
apply.” We disagree.
Third, to the extent that Plaintiff raises issues within his brief (such as “violations
of judicial impartialness”5 and US MED’s “scheme” to allegedly defraud Medicare) that
were not included in the statement of issues presented for review, such issues have been
waived. Our Supreme Court has held that “an issue may be deemed waived when it is
argued in the brief but is not designated as an issue in accordance with Tenn. R. App. P.
27(a)(4).” Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012). “We will not undertake to
search the record and then revise Plaintiffs’ brief in its entirety so as to create issues of
claimed errors by the Trial Court when the Plaintiffs raise no such specific claimed errors
because to do so would have this Court serve as Plaintiffs’ attorney.” Murray v. Miracle,
457 S.W.3d 399, 403 (Tenn. Ct. App. 2014); see also Tenn. R. App. P. 13(b) (“Review
generally will extend only to those issues presented for review.”).
Fourth, instead of referencing the evidence adduced at trial, Plaintiff frequently cites
to his own arguments made in pre- or post-trial motions and pleadings in an effort to show
that he carried his burden of proof at trial. It is axiomatic that bare allegations and factual
averments in dispute are not evidence. See, e.g., Threadgill v. Bd. of Prof’l Responsibility,
299 S.W.3d 792, 812 (Tenn. 2009), overruled on other grounds by Lockett v. Bd. of Prof’l
Responsibility, 380 S.W.3d 19 (Tenn. 2012) (“The law is clear that statements of fact made
in or attached to pleadings, briefs, and oral arguments are not evidence and may not be
considered by an appellate court unless they are properly made part of the record.”); Doe
v. Mama Taori’s Premium Pizza, LLC, No. M1998-00992-COA-R9-CV, 2001 WL
327906, at *1 n.2 (Tenn. Ct. App. Apr. 5, 2001) (noting that allegations contained in
parties’ pleadings are not evidence and the requirement that litigants “present competent
evidence to prove the factual averments in their respective pleadings” at trial); Tenn. R.
App. P. 13(c).
Because Plaintiff’s brief falls quite short of meeting the requirements of the Rules
of Appellate Procedure and because of the other deficiencies discussed above, Plaintiff’s
issues on appeal are waived. Nevertheless, we have reviewed the record, the statement of
5
Throughout his brief, Plaintiff maintains that the outcome of the trial was the result of the trial court’s
“uncontrollable anger towards [him]” and offensively accuses the trial court of “lynching.” “If there were
any shortcomings” in Plaintiff’s presentation of evidence at trial, “[the] trial court should be blamed,” he
argues. Having reviewed the entire record, we find these allegations to be unsubstantiated. In fact, it is
clear that the trial court afforded Plaintiff considerable leeway throughout the proceedings in consideration
of his pro se status.
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the evidence subject to the trial court’s corrections, and Plaintiff’s arguments, as best as
they can be understood. From all of this, it is clear that Plaintiff failed, by a preponderance
of the evidence, to make out a prima facie case for breach of contract.6 See Thompson, 63
S.W.3d at 791. Contrary to Plaintiff’s adamancy that the trial court and US MED had the
“responsibility” to “investigate” the claims he asserted and to “ask questions [and] connect
the dots,” the burden to prove his claims and damages was on Plaintiff alone. See, e.g.,
BancorpSouth Bank, Inc. v. Hatchel, 223 S.W.3d 223, 227 (Tenn. Ct. App. 2006) (“When
a plaintiff alleges breach of contract, he or she is responsible for proving (1) the existence
of an enforceable contract, (2) nonperformance amounting to a breach of the contract, and
(3) damages caused by the breach of contract.”) (internal citations and quotations omitted);
Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999) (“The party seeking
damages has the burden of proving them.”). Therefore, had the issues not been waived,
we would affirm the trial court’s dismissal of this action pursuant to Tennessee Rule of
Civil Procedure 41.02(2).
V. CONCLUSION
For the foregoing reasons, the appeal is dismissed. The case is remanded for such
further proceedings as may be necessary and consistent with this opinion. Costs of the
appeal are taxed to the appellant, Jon Vazeen, for which execution may issue if necessary.
_________________________________
JOHN W. McCLARTY, JUDGE
6
On appeal, Plaintiff did not challenge the dismissal of his negligence claim against US MED. Tenn. R.
App. P. 13(b).
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