Turtle Creek Apartments v. Polk

IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
TURTLE CREEK APARTMENTS, )
) Davidson Circuit Court
Plaintiff/Counter-Defendant/ ) No. 94C-3364
Appellee, )
)
VS. ) Appeal No.
) 01A01-9608-CV-00382
MANFRED POLK and MURIEL J. )
POLK, )
Defendants/Counter-Plaintiffs/
)
)
FILED
Appellants. )
June 20, 1997
IN THE COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
MIDDLE SECTION AT NASHVILLE Appellate Court Clerk
APPEAL FROM CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE WALTER C. KURTZ, JUDGE
Tracy Shaw, #7172 Andrew B. Gibson, Jr., #6788
HOWELL & FISHER Suite 600, Noel Place
Court Square Bldg. 200 Fourth Avenue, North
300 James Robertson Parkway Nashville, TN 37219
Nashville, TN 37201-1107
ATTORNEYS FOR PLAINTIFF/COUNTER-DEFENDANT/APPELLEE
Manfred Polk
P.O. Box 1661
Brentwood, TN 37024-1661
PRO SE FOR DEFENDANT/COUNTER-PLAINTIFF/APPELLANT,
MANFRED POLK.
AFFIRMED AND REMANDED
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
TURTLE CREEK APARTMENTS, )
) Davidson Circuit Court
Plaintiff/Counter-Defendant/ ) No. 94C-3364
Appellee, )
)
VS. ) Appeal No.
) 01A01-9608-CV-00382
MANFRED POLK and MURIEL J. )
POLK, )
)
Defendants/Counter-Plaintiffs/ )
Appellants. )
OPINION
This is a landlord-tenant suit in which the tenants have appealed from a non-jury
judgment disposing of their conflicting claims.
The brief of the appellants, Manfred Polk and Muriel J. Polk, filed by Manfred Polk “Pro
Se counsel for Defendants/Appellants” states the issues on appeal as follows:
1. Whether the Trial Court erred in denying Appellants’
Motion for Continuance.
2. Whether the Trial Court violated Appellants’ due
process by denying Motion for Continuance.
Since there is no evidence that Manfred Polk is licensed to practice law in Tennessee, the
consideration of his brief must be limited to the rights of Manfred Polk. T.C.A. §§ 23-1-108-
109.
I.
The Case
On August 24, 1994, the plaintiff, Turtle Creek Apartments caused to be issued a General
Sessions Detainer Warrant against Manfred and Muriel Polk seeking possession of property
described as 320 Hickory Trace Drive, rent, fees, charges and damages.
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On September 27, 1994, the General Sessions Court rendered judgment in favor of the
plaintiff for possession and $1,610.00.
On October 5, 1994, the General Sessions Court granted to “the defendant” an appeal to
the Circuit Court upon “appeal bond.”
On October 13, 1994, defendants filed a bond for appeal to the Circuit Court, and on the
same date the appeal was filed in the Circuit Court.
On November 4, 1994, the “defendant/appellant” by Manfred Polk, Pro Se, moved the
Circuit Court to set the appeal for hearing.
On December 16, 1994, the Trial Court entered an order setting the appeal for trial on the
non-jury docket at 9:00 a.m. on May 1, 1995. The order contained the signature of Manfred
Polk, Pro Se.
On May 9, 1995, an agreed order was entered resetting the trial time to October 17, 1995,
at 9:00 a.m.
On October 12, 1995, the defendant, Manfred Polk, Pro Se, moved for a “continuation”
and that:
--- sufficient time be granted for plaintiff appellee to file an
answer and for a complete discovery by both parties.”
(Emphasis supplied)
On the same date, October 12, 1995, Manfred and Muriel Polk filed a “Compulsory
Counterclaim” seeking damages for wrongful eviction, rent adjustment, mental distress, pain,
suffering, loss of services, living in an undesirable area, “loss of income due to derogatory credit
information and development business,” and punitive damages.
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On October 18, 1995, an agreed order was entered rescheduling the trial for April 2,
1996. (No time designated.)
On March 8, 1996, Manfred Polk, Pro Se, filed a motion on behalf of
“defendants/appellees” seeking a default judgment against the plaintiff/appellees for failure to
reply to counterclaim.
On March 15, 1996, the plaintiff/counter-defendant filed a reply to the counter-claim.
On March 29, 1996, a licensed Tennessee lawyer acting for Manfred and Muriel Polk,
filed a “Motion for Continuance of Trial.” The trial was held as scheduled on April 2, 1996.
On April 4, 1996, the Trial Court entered an order overruling defendant/counter-
plaintiffs’ motion for default judgment.
On April 9, 1996, the Trial Judge entered judgment as follows:
After the presentation of proof by the parties, the court
determined:
(1) The action of Turtle Creek Apartments v. Muriel Polk
should be dismissed.
(2) The action of Manfred and Muriel Polk against Turtle
Creek Apartments should be dismissed, and accordingly a
judgment should be entered in favor of Turtle Creek Apart-
ments.
(3) That Turtle Creek Apartments is entitled to a judgment
against Manfred Polk in the amount of $2,460.
(4) That court costs attributable to these actions shall be
taxed to Manfred Polk, for which execution may issue if
necessary.
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II.
The Law
Trial Judges have broad discretion to grant or deny an application for continuance, and
such discretion is ordinarily respected in the absence of clear, prejudicial error under the
circumstances. In Morrow v. Drumwright, 202 Tenn. 307, 304 S.W.2d 313 (1957), the Supreme
Court approved the denial of a continuance defendants’ negligent delay in informing counsel of
a witness in time for his deposition to be taken.
In Barish v. Metropolitan Government, Tenn. App. 1981, 627 S.W. 953, the denial of
continuance for withdrawal of counsel was remanded for an evidentiary determination of
whether the applicant had exercised due diligence in seeking substitute counsel.
In Morrow v. Sneed, 121 Tenn. 173, 114 S.W. 201 (1908), the Supreme Court reversed
a denial of continuance and said:
On January 5, 1907, the complainant answered defendant’s
cross bill, denying its various allegations. Nothing was done
by either party to speed the cause until the 13th of August,
1907, when, by consent, it was continued and remanded to
the rules for the taking of proof. Previous to this latter date,
however, complainant gave notice that he would take the
depositions of several persons, himself included, in the city
of Clarksville, where he resided, on the 28th of August, 1907.
At the request of the defendant and for his convenience, the
complainant consented to postpone the taking of these
depositions until October 28, 1907. Again on this latter date
at the request of defendant, a further postponement was
made until November 5th, and thereafter it was mutually
agreed that the depositions in question should be taken
November 12th in that city. On that day, the defendant being
in attendance for the purpose of cross-examination, the
deposition of the complainant, Morrow, was given, but not
finally concluded. The record indicates it was left open in
order that the witness might refer to some records, with a
view of making certain that which was possibly somewhat
uncertain. This deposition remained in an unfinished condi-
tion until December 9th.
While there was much delay on the part of complainant, from
the date of the filing of the original bill, in the preparation of
this cause for trial, yet we think it clear, at least from August,
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1907, to November 12th the suspension of such preparation
was the result of a concession made by the solicitors of
complainant in the city of Knoxville, entirely for the con-
venience of defendant, who desired to be present in person
at the taking of the depositions, but whose duties as a
judicial officer made it difficult for him to be in Clarksville
an earlier date. When the deposition of Morrow as left open
on that day, we think it clear the subsequent delay in closing
and forwarding it was the result of pressing professional
engagements of the solicitors of both the complainant and
the defendant residing in the city of Clarksville. So it was,
when the defendants announced in open court, on
December 9th, that Judge Anderson would take up the
docket of cases in which he (Judge Sneed) was disqualified,
and the Knoxville solicitors of complainant were notified
that this case would be called at 1:30 p.m. on the 11th of
December, they at once wired their associate counsel, in
Clarksville, to have closed and forward Morrow’s deposi-
tion. Notwithstanding this telegram was speedily acted on,
the deposition did not get to the office of the clerk and
master of the chancery court by the hour of the day desig-
nated. Anticipating the early arrival of same, at the call
of the case by Judge Anderson at the time designated, they
asked for a postponement for a few days or a continuance.
This being declined, they then asked to dismiss their case
without prejudice, and this was also declined, with the
result that both original and cross bill were dismissed as
upon a trial, upon the ground that the allegations con-
tained in these several pleadings were not sustained by
evidence.
To repeat what has already been said, we think it apparent
that, while the parties to this cause had been dealing at
arms’ length until notice was given in August to the defen-
dent of the taking of depositions in Clarksville by
complainant, from that time until the 12th of November
the preparation of the case for trial was a matter of con-
cession on the part of complainant to the convenience of
the defendant. This being so, it can readily be perceived
that the former might be disarmed of the feeling that he
would be precipitately pressed into a trial. In this state of
the case, and under these conditions, we do not think the
request of the complainant for a few days’ delay, giving
time for the arrival of his deposition, was unreasonable.
To the contrary, we are satisfied that it was reasonable,
and that forcing him to trial under the circumstances
worked a hardship, and was not warranted by any equit-
able consideration or legal necessity. This condition was
aggravated by the refusal of the trial judge to grant the
motion of complainant to dismiss when he found himself
in this position of disadvantage.
While continuances are subject to the discretion of the
trial court, and this discretion will not be interfered with,
save when abused, yet we are satisfied the present is a
case where it is the duty of this as a revising court to
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interpose. The final decree of the trial judge, therefore, will
be reversed, and the cause will be remanded for further
proceedings.
In some respects, the quoted authority supports the position of appellant, but the
circumstances of the quoted authority differ substantially from those of the present case.
In the quoted authority, there was a lapse by acquiescence from January 5, 1907 to
August 13, 1907 - a period of seven months; consent postponements until October 28 and
November 12, 1907, a period of three months, and an agreed brief and agreed delay in producing
a deposition for more certain response from the witness. The deposition had not been completed
by December 11, the date of trial, despite the urgent efforts of counsel. Counsel who sought the
continuance was not responsible for the fact that the deposition was not timely completed.
In the present case, the suit originated on August 24, 1994. The General Sessions
judgment was rendered on September 27, 1994, with the appeal arriving in the Circuit Court on
October 13, 1995. On December 16, 1994, on Motion of Defendants, the Trial Court set the case
for hearing on May 1, 1995. On May 9, 1995, defendants joined in an agreed order resetting the
case on October 17, 1995. On October 12, 1995, defendants filed their “Compulsory Counter
Complaint.” On October 18, 1996, defendants-counter claimants joined in a consent order
resetting the cause for April 2, 1996. On March 29, 1996, just 5 days before the date of trial,
defendants-counter claimants sought yet another delay which was refused.
These extreme circumstances amply justify the discretionary decision to deny further
delay in the disposition of this longstanding and often delayed judicial proceeding, and
constituted no denial of due process.
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The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the
appellants and their surety. The cause is remanded to the Trial Court for necessary further
proceedings.
AFFIRMED AND REMANDED
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
____________________________
BEN H. CANTRELL, JUDGE
____________________________
WILLIAM C. KOCH, JR., JUDGE
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