Michael W. Smith v. Kimberly Chrestman

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Brief March 25, 2014
MICHAEL W. SMITH v. KIMBERLY CHRESTMAN
Direct Appeal from the Circuit Court for Shelby County
No. CT-004041-11 Jerry Stokes, Judge
No. W2013-02478-COA-R3-CV - Filed April 16, 2014
The trial court dismissed Appellant’s complaint for lack of prosecution. Finding no abuse
of discretion, we affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R.
F ARMER,J., and H OLLY M. K IRBY, J., joined.
Michael W. Smith, Whiteville, Tennessee, appellant, pro se
No Brief filed by Kimberly D. Chrestman, Olive Branch, MS, appellee, pro se
OPINION
MEMORANDUM OPINION 1
I. F ACTS & P ROCEDURAL H ISTORY
On September 2, 2011, Michael Smith, acting pro se, filed a complaint against
Kimberly Chrestman in the Shelby County Circuit Court alleging, among other things, that
Ms. Chrestman had knowingly exposed him to Hepatitis C and that she had stolen various
items from him. Mr. Smith sought the issuance of declaratory judgments and injunctions as
well as compensatory damages in excess of $10,000,000.00, plus punitive damages to be
determined.
On October, 19, 2011, Mr. Smith filed his Requests for Admission. The following
day, he filed a Motion for Default Judgment alleging that Ms. Chrestman had failed to timely
answer the complaint. Then, on November 15, 2011, Mr. Smith filed a Motion for Judgment
on Pleadings alleging that Ms. Chrestman had failed to respond to his requests for admission
or to file any responsive pleading in the case.
From the record, it appears that no further action was taken by Mr. Smith to advance
the case. On October 29, 2013, the circuit court entered an Order of Dismissal for Lack of
Prosecution indicating that neither Mr. Smith nor Ms. Chrestman appeared when the cause
came to be heard on the court’s calendar. Mr. Smith timely appealed the dismissal to this
Court.2
1
Rule 10 of the Rules of the Court of Appeals of Tennessee states:
Ths 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be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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.
2
Ms. Chrestman has filed no appellate brief.
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II. I SSUE P RESENTED
On appeal, Mr. Smith argues that the circuit court erred in dismissing his complaint
for lack of prosecution. Discerning no abuse of discretion, we affirm.
III. D ISCUSSION
“Trial courts posses inherent, common-law authority to control their dockets and the
proceedings in their courts.” Hodges v. Attorney General, 43 S.W.3d 918, 921 (Tenn. Ct.
App. 2000). “Their authority is quite broad and includes the express authority to dismiss
cases for failure to prosecute[.]” Id. (citations omitted). “Trial courts may, on their own
motion, dismiss cases for lack of prosecution, but this authority should be exercised sparingly
and with great care.” Id. (citing Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730, 731 (Tenn.
1978)). “[A] trial court’s decision to dismiss a case for failure to prosecute is within its
sound discretion, and will not be reversed unless there is abuse of that discretion.” Osagie
v. Peakload Temp. Servs., 91 S.W.3d 326, 329 (Tenn. Ct. App. 2002) (citing Mfrs. Consol.
Serv., Inc. v. Rodell, 42 S.W.3d 846 (Tenn. Ct. App. 2000); White v. College Motors, Inc.,
212 Tenn. 384, 370 S.W.2d 476 (1963)). “‘[W]e will find an abuse of discretion only if the
court ‘applied incorrect legal standards, reached an illogical conclusion, based its decision
on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that causes an
injustice to the complaining party.’’” Coleman v. Coleman, No. W2012-02183-COA-R3-
CV, 2013 WL 5308013, at *11 (Tenn. Ct. App. Sept. 19, 2013) (quoting Konvalinka v.
Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)).
On appeal, Mr. Smith maintains that the trial court dismissed his complaint because
he failed to set a hearing date for his pending motions. He claims that such dismissal was
in error because he was incarcerated–a fact of which he claims the circuit court was
aware–and, therefore, he was unable to schedule a hearing date.
In his appellate brief, Mr. Smith cites case law indicating that a trial court should not
dispose of a case without first considering and resolving an incarcerated party’s pretrial
motions–even if the prisoner failed to set such motions for argument. See Chastain v.
Chastain, No. M2003-02016-COA-R3-CV, 2004 WL 725277, at * 2 (vacating a divorce
decree where the trial court left unresolved a prisoner’s discovery motions and “plac[ing]
[little] significance” on the prisoner’s failure to set his motions for argument); see also Bell
v. Todd, 206 S.W.3d 86, 91 (Tenn. Ct. App. 2005) (stating that “reviewing courts have
consistently held that trial courts err when they proceed to adjudicate the merits of the claim
without first addressing the prisoner’s pending motion or motions.”). However, the above-
cited cases are distinguishable from the instant case. Here, the trial court did not adjudicate
the merits of Mr. Smith’s claims without first resolving his pre-trial motions; it dismissed the
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case in toto for failure to prosecute. The record contains no indication that the trial court’s
dismissal was predicated upon Mr. Smith’s failure to set any motion for hearing. Instead, the
trial court’s Order states that the case was dismissed because Mr. Smith failed to appear
when the cause came to be heard on the court’s calendar.
Even if we assume, arguendo, that the trial court’s dismissal was premised upon Mr.
Smith’s failure to schedule a hearing, Mr. Smith’s argument that his incarceration status
excuses such failure nonetheless fails because there is simply nothing in the bare-bones
record before us to substantiate Mr. Smith’s claim that he was incarcerated during the period
in question.3 The appellant has a duty to prepare a record that conveys “a fair, accurate and
complete account of what transpired with respect to those issues that are the bases of appeal.”
Tenn. R. App. P. 24(b). “In the absence of an adequate record on appeal, we must presume
that the trial court’s ruling was supported by the evidence.” State v. Bibbs, 806 S.W.2d 786,
790 (Tenn. Crim. App. 1991) (citations omitted). Without any evidence to support Mr.
Smith’s claim–that his incarceration thwarted the prosecution of his complaint–we find the
trial court did not abuse its discretion in dismissing Mr. Smith’s complaint for lack of
prosecution. The decision of the circuit court is affirmed.
IV. C ONCLUSION
For the aforementioned reasons, we affirm the decision of the circuit court. Costs of
this appeal are taxed to Appellant, Michael Smith, for which execution may issue if
necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
3
Additionally, we note that Mr. Smith’s appellate brief contains no citations to the record as required
by Rule 27 of the Tennessee Rules of Appellate Procedure.
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