Bobby Murray v. Dennis Miracle

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 9, 2014 Session
BOBBY MURRAY, ET AL. v. DENNIS MIRACLE, ET AL.
Appeal from the Chancery Court for Roane County
No. 16543 Frank V. Williams, III, Chancellor
No. E2013-00498-COA-R3-CV-FILED-SEPTEMBER 23, 2014
Bobby Murray and Loretta Murray (“Plaintiffs”) sued Dennis Miracle and Robert Daniel
Smith (“Defendants”) with regard to a dispute involving real property located in Roane
County, Tennessee. After a trial, the Chancery Court for Roane County (“Trial Court”)
entered its judgment on February 11, 2013, finding, inter alia, that Defendants did not
dispute that Plaintiffs had a right to improve the roadway at issue, but that the parties
disagreed regarding the nature of the road work to be performed. In its judgment, the Trial
Court, inter alia, appointed a Special Commissioner to supervise the proposed road work and
detailed how the work should be implemented. Plaintiffs appeal the Trial Court’s judgment.
We find and hold that Plaintiffs have significantly failed to comply with Tenn. R. App. P. 27
rendering this Court unable to address any of Plaintiffs’ potential issues. We, therefore,
affirm the Trial Court’s judgment, find Plaintiffs’ appeal frivolous, and award Defendants
damages for frivolous appeal. Defendants raise an issue on appeal regarding whether the
Trial Court erred in reversing its order regarding discovery sanctions. We find and hold that
the Trial Court erred in interpreting our previous Opinion to require reversal of the sanctions.
We, therefore, vacate the Trial Court’s September 25, 2012 order, reinstate the Trial Court’s
September 22, 2010 order awarding Defendants1 attorney’s fees against Plaintiffs as
discovery sanctions, and remand to the Trial Court to address Plaintiffs’ motion for
reconsideration of these sanctions.
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The motion seeking discovery sanctions was filed by Defendant Dennis Miracle, not by both of the
defendants. At that time, each of the defendants was represented by his own attorney. After the sanction
was paid by Plaintiffs to Defendant Dennis Miracle’s attorney, Mark N. Foster, Defendant Robert Daniel
Smith’s attorney was granted leave to withdraw as attorney of record and attorney Mark N. Foster was
substituted as the attorney of record for Defendant Robert Daniel Smith. As the discovery sanction was
ordered to be paid to Defendant Dennis Miracle’s attorney, Mark N. Foster, and, as Attorney Foster now
represents both of the defendants, we refer in this Opinion to the award of discovery sanctions as an award
of attorney’s fees to Defendants in the plural for ease of reading.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed, in part; Vacated, in part; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which J OHN W. M CC LARTY
and W. N EAL M CB RAYER, JJ., joined.
Bobby Murray and Loretta Murray, Harriman, Tennessee, pro se appellants.
Mark N. Foster, Rockwood, Tennessee, for the appellees, Dennis Miracle and Robert Daniel
Smith.
OPINION
Background
This is the second time this case has been before us on appeal. We discuss in
this Opinion only those facts directly relevant to the issues involved in this appeal.
Additional background is contained in our Opinion in Murray v. Miracle, No.E2010-02425-
COA-R3-CV, 2011 Tenn. App. LEXIS 494 (Tenn. Ct. App. Sept. 8, 2011), Rule 11 appl.
perm. appeal denied Jan. 11, 2012 (“Murray I”).
In Murray I, we reversed the Trial Court’s dismissal of Plaintiffs’ claims
because of Plaintiffs’ failure to comply with court orders regarding discovery, among other
things. Specifically, in Murray I, we considered whether the dismissal for failure to comply
with a discovery order was an appropriate sanction in this case. Murray I, 2011 Tenn. App.
LEXIS 494, at **18-21. We stated:
After [Plaintiffs] discharged their attorney following the trial court’s
order for them to pay attorney fees, they submitted an inartfully drawn
pleading days later that stated as follows: “Plaintiffs ask this Court to
reconsider the order for Plaintiffs to pay the $4[38].82 and Order [Plaintiffs’
former attorney] to Pay . . . .” This pleading was filed before the trial court
dismissed [Plaintiffs’] case. Counsel for [Defendant Mr. Miracle] asserts that
[Plaintiffs] never presented any motion for the trial court to change its order
from the July 16, 2010 hearing, and, in any event, the order from the July
hearing, filed on September 22, 2010, remained a valid order that must be
obeyed until it was modified.
A lawyer’s conduct during the course of litigation is attributable to and
binding on his or her client. Hart v. First Nat’l Bank, 690 S.W.2d 536, 539
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(Tenn. Ct. App. 1985). However, Tennessee courts generally do not favor
dismissal when attorney error causes a client’s failure to abide by discovery
rules. See Murray v. Christian Methodist Episcopal Church, 153 S.W.3d 371,
378 (Tenn. Ct. App. 2004). Moreover, as noted above, the courts give pro se
litigants who lack formal legal training a certain amount of leeway in drafting
their pleadings and measure the adequacy of the pleadings using standards that
are less stringent than those applied to papers prepared by lawyers. The
substance of the October 4, 2010, pleading was sufficient to apprise the trial
court that [Plaintiffs] were requesting that it reconsider the attorney fee award
and the issue of whether the fee sanction should have been imposed on counsel
instead of [Plaintiffs]. Tenn. R. Civ. P. 37.01(4) and Tenn. R. Civ. P. 37.02
permit imposing monetary sanctions for discovery abuse against a party, the
party’s lawyer, or both.
Murray I, 2011 Tenn. App. LEXIS 494, at **19-21. In Murray I, we found and held, inter
alia, “that the trial court abused its discretion in dismissing [Plaintiffs’] claims pursuant to
Rule 37.02(C) without addressing [Plaintiffs’] reconsideration request.” Murray I, 2011
Tenn. App. LEXIS 494, at *21.
After we reversed the dismissal of Plaintiffs’ claims in Murray I, the Trial
Court on remand held a hearing on the discovery sanctions discussed in Murray I. After this
hearing, the Trial Court entered its order on September 25, 2012 finding and holding:
[T]he Court therefore finds based on its reading of the Court of Appeals’
decision that the Court is bound, not as a matter of the Court’s discretion but
as a matter of the application of the Court of Appeals’ decision, to require
Defendant to repay to Plaintiffs the $438.82 amount Plaintiffs paid Defendant
pursuant to the Court’s Orders entered September 22, 2010 and November 18,
2010.
The case proceeded to trial. After trial, the Trial Court entered its Final Order
and Judgment on February 11, 2013. Plaintiffs appeal the Trial Court’s judgment to this
Court.
Discussion
Plaintiffs’ brief on appeal is so severely deficient that we are unable to
determine what issues Plaintiffs are attempting to raise on appeal other than they are unhappy
with some portion of the Trial Court’s decision. Although not stated exactly as such,
Defendants raise two issues on appeal: 1) whether Plaintiffs’ appeal should be deemed
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frivolous entitling Defendants to an award of damages; and, 2) whether the Trial Court erred
in interpreting our Opinion in Murray I to require that the discovery sanction ordering
Plaintiffs to pay $438.82 to Defendants be reversed.
We will begin by addressing the deficiencies in Plaintiffs’ brief. Plaintiffs are
representing themselves pro se on appeal. As this Court explained in Young v. Barrow:
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 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.
We note that in this appeal Plaintiffs initially filed a principal brief, which
failed to comply with Tenn. R. App. P. 27 and this Court ordered Plaintiffs to file a brief in
compliance with Rule 27. Plaintiffs filed an amended principal brief, but the amended brief
also fails to comply with Tenn. R. App. P. 27 in any significant manner.
Specifically, Plaintiffs’ brief fails to comply with Tenn. R. App. P. 27(a)(4),
which requires that a brief shall contain “[a] statement of the issues presented for review.”
Tenn. R. App. P. 27(a)(4). Although Plaintiffs’ brief contains a section titled “QUESTION
PRESENTED FOR REVIEW,” this section, which spans approximately three-quarters of a
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page, is composed of generalized questions, fragments, and groups of words ending with a
question mark, not a statement of specific issues that would justify appellate review.
Plaintiffs’ brief also contains a section titled “STATEMENT OF THE ISSUES,” which
covers approximately a page and a quarter and is comprised of a run-on sentence fragments
typed entirely in capital letters that is difficult to read and mostly unintelligible. Plaintiffs’
brief also contains a section titled “STATEMENT OF THE ISSSUES [sic] FOR REVIEW,”
which covers a page and a half with run-on sentence fragments, which like the previously
discussed two sections is mostly unintelligible. Finally, Plaintiffs’ brief contains a section
titled “ARGUMENT FOR REVISED APPEAL,” which begins with several lines typed in
bold type and capital letters and which reads very similar to the above mentioned sections.
Just about the only thing that is clear from Plaintiffs’ brief is that Plaintiffs are unhappy with
the outcome of the trial in some way. Plaintiffs’ brief, however, does not contain a statement
of the issues as required by Tenn. R. App. P. 27(a)(4), and, thus, it is impossible to tell from
their brief what appealable issue or issues Plaintiffs wish to raise. 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.
Plaintiffs’ brief also fails to comply with Tenn. R. App. P. 27(a) sections (2)
and (7). Although Plaintiffs’ brief contains a section titled “TABLE OF AUTHORITIES,”
it fails to provide references to pages of the brief where such authorities are cited as is
required by Tenn. R. App. P. 27(a)(2). A review of the remainder of Plaintiffs’ brief reveals
that the purported authorities listed in the table of authorities are not cited anywhere else
within Plaintiffs’ brief. The purported argument section of Plaintiffs’ brief contains no
references whatsoever to the record and no citations to authorities as required by Tenn. R.
App. P. 27(a)(7).
In Bean v. Bean this Court observed:
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. See State v.
Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997); Rampy v. ICI
Acrylics, Inc. 898 S.W.2d 196, 210 (Tenn. Ct. App.1994); State v. Dickerson,
885 S.W.2d 90, 93 (Tenn. Crim. App. 1993). Moreover, an issue is waived
where it is simply raised without any argument regarding its merits. See Blair
v. Badenhope, 940 S.W.2d 575, 576-577 (Tenn. Ct. App. 1996); Bank of
Crockett v. Cullipher, 752 S.W.2d 84, 86 (Tenn. Ct. App. 1988). . . . This
Court is under no duty to verify unsupported allegations in a party’s brief, or
for that matter consider issues raised but not argued in the brief. Duchow v.
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Whalen, 872 S.W.2d 692, 693 (Tenn. Ct. App. 1993) (citing Airline Const.
Inc., v. Barr, 807 S.W.2d 247 (Tenn. Ct. App. 1990)).
Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000).
Furthermore, during the pendency of this appeal, we remanded this case to the
Trial Court to resolve differences with regard to the statement of the evidence. Pursuant to
Tenn. R. App. P. 24, service of the statement of the evidence shall be “accompanied by a
short and plain declaration of the issues the appellant intends to present on appeal.” Tenn.
R. App. P. 24(c). The Trial Court held a hearing regarding the objections to the proposed
statement of the evidence and then entered a Statement of the Evidence and Proceedings,
which stated that the Trial Court had not received a “‘short and plain declaration of the issues
the appellant intends to present on appeal’ as required by Rule 24 . . . .” In the Statement of
the Evidence and Proceedings, the Trial Court stated that because of Plaintiffs’ failure to
comply with Tenn. R. App. P. 24, the Trial Court “erred on the [side] of overincluding [sic]
material in this Statement of Evidence and Proceedings),” in order to represent “a fair,
accurate and complete account of what transpired with respect to those issues that are the
apparent bases of appeal . . . .” Thus, the Trial Court also was unable to determine what
specific issues Plaintiffs were attempting to raise on appeal.
Plaintiffs failed to comply in any significant way with Tenn. R. App. P. 27. As
such, we find and hold that Plaintiffs have waived any issues they may have attempted to
raise on appeal.
We next consider the issue raised by Defendants regarding whether Plaintiffs’
appeal is frivolous. “‘A frivolous appeal is one that is ‘devoid of merit,’ or one in which
there is little prospect that [an appeal] can ever succeed.’” Morton v. Morton, 182 S.W.3d
821, 838 (Tenn. Ct. App. 2005) (quoting Industrial Dev. Bd. of the City of Tullahoma v.
Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995)). In pertinent part, Tenn. Code Ann.
§ 27-1-122 addresses damages for frivolous appeals stating:
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include, but need not be limited to, costs, interest on the
judgment, and expenses incurred by the appellee as a result of the appeal.
Tenn. Code Ann. § 27-1-122 (2000).
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As discussed more fully above, Plaintiffs’ brief on appeal is so severely
deficient that this Court is unable to determine even what issues Plaintiffs are attempting to
raise on appeal. As such, Plaintiffs’ appeal is devoid of merit with little prospect that the
appeal could ever succeed. Given this, we hold Plaintiffs’ appeal frivolous and remand this
case to the Trial Court for a determination of an award of damages from Plaintiffs to
Defendants for frivolous appeal.
Finally, we consider whether the Trial Court erred in interpreting our Opinion
in Murray I to require that the discovery sanction requiring Plaintiffs to pay $438.82 to
Defendants be reversed. In its September 25, 2012 order, the Trial Court interpreted Murray
I as requiring the Trial Court to order Defendants to repay the $438.82. The Trial Court erred
in interpreting our Opinion in Murray I. In Murray I, as discussed above, we held only that
it was error to dismiss Plaintiffs’ claims without first hearing Plaintiffs’ motion for
reconsideration. We did not hold that the discovery sanction award of $438.82 was
improper, nor did we hold that this sanction should be reversed. In fact, our Opinion in
Murray I never addressed the propriety of the $438.82 sanction. Plaintiffs’ motion for
reconsideration of the discovery sanction award had not yet been considered by the Trial
Court and, therefore, the issue of whether this sanction was awarded in error was not ripe for
appellate review. As such, this issue was not decided by this Court in Murray I.
The Trial Court’s order requiring Defendants to repay to Plaintiffs the $438.82
was based upon a misunderstanding of our Opinion in Murray I. Given this, we vacate the
Trial Court’s September 25, 2012 order and reinstate the Trial Court’s September 22, 2010
order awarding Defendants $438.82 for reasonable expenses including attorney’s fees as a
discovery sanction. Upon remand, the Trial Court is directed to address Plaintiffs’ motion
for reconsideration of the discovery sanction requiring Plaintiffs to pay $438.82 to
Defendants.
Conclusion
The judgment of the Trial Court entered on February 11, 2013 is affirmed. The
order of the Trial Court entered on September 25, 2012 is vacated, and the order of the Trial
Court entered on September 22, 2010 awarding Defendants attorney’s fees against Plaintiffs
as discovery sanctions is reinstated. This cause is remanded to the Trial Court for further
proceedings consistent with this Opinion and for collection of the costs below. The costs on
appeal are assessed against the appellants, Bobby Murray and Loretta Murray.
_________________________________
D. MICHAEL SWINEY, JUDGE
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