Rocky Joe Houston v. Pat Brown

11/18/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 2, 2020
ROCKY JOE HOUSTON v. PAT BROWN
Appeal from the Chancery Court for Roane County
No. 2015-99 Frank V. Williams, III, Chancellor
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No. E2019-01563-COA-R3-CV
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Appellant appeals the trial court’s order setting aside his transfer of real property as a
fraudulent conveyance. We do not reach the substantive issue because Appellant’s notice
of appeal is untimely, thus depriving this Court of jurisdiction over the appeal.
Dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.
Rocky Houston, Ten Mile, Tennessee, appellant, pro se.
Kerry Knox and Mitchell J. Ferguson, Murfreesboro, Tennessee, for the appellee, Pat
Brown.
OPINION
On May 17, 2012, a jury entered a $5,000,000.00 verdict against Appellant Rocky
Joe Houston in favor of Appellee Pat Brown in her wrongful death lawsuit. Ms. Brown is
the mother of Michael Brown, who was shot and killed by Mr. Houston. Mr. Houston is
currently incarcerated. To collect her judgment, on July 12, 2012, Ms. Brown filed a lien
on real property (the “Property”) owned by Mr. Houston. The Property was originally
transferred from Mr. Houston’s parents to him and his then-wife, Nancy Crabtree, as a
tenancy by the entirety. Following the filing of the lien, on February 11, 2013, Mr.
Houston and Ms. Crabtree executed a quit claim deed by which they purported to
dissolve the tenancy by the entirety and vest the fee simple in Ms. Crabtree.
On September 22, 2015, Ms. Brown filed suit against Mr. Houston and Ms.
Crabtree to set aside the February 11, 2013 quit claim deed as a fraudulent conveyance.
After several delays, the trial court heard the case on June 11, 2019. The trial court
entered an order on July 16, 2019 (the order was file stamped July 17, 2019), wherein it
held that the conveyance of the Property “was made and contrived with the knowledge
that a sizeable judgment . . . had been entered in favor of [Ms. Brown] against . . . Rocky
Houston” in an effort to “hinder [Ms. Brown’s] collection of her judgment against . . .
Rocky Houston.” As such, the trial court concluded that the transfer was fraudulent and
set aside the February 11, 2013 quit claim deed. Mr. Houston filed a notice of appeal in
this Court on September 3, 2019.
The sole issue for review is whether the trial court erred in setting aside the
February 11, 2013 quit claim deed as a fraudulent conveyance. We first note that, while
we are cognizant of the fact that Mr. Houston is representing himself in this appeal, it is
well-settled that “pro se litigants are held to the same procedural and substantive
standards to which lawyers must adhere.” Brown v. Christian Bros. Univ., No. W2012-
01336-COA-R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5, 2013), perm. app.
denied (Tenn. Jan. 15, 2014). This Court has held that “[p]arties who choose to represent
themselves are entitled to fair and equal treatment by the courts.” Hodges v. Tenn. Att’y
Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000); Paehler v. Union Planters Nat’l Bank,
Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997). Nevertheless, “courts must not excuse
pro se litigants from complying with the same substantive and procedural rules that
represented parties are expected to observe.” Young v. Barrow, 130 S.W.3d 59, 62-63
(Tenn. Ct. App. 2003); 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).
Unfortunately, we do not reach the substantive issue in this appeal due to the fact
that Appellant’s notice of appeal was untimely. Although this Court’s review is generally
limited only to those issues presented for review, Tennessee Rule of Appellate Procedure
13(b) requires us to “also consider whether the trial and appellate court have jurisdiction
over the subject matter, whether or not presented for review.” Here, Mr. Houston brings
his appeal under Tennessee Rule of Appellate Procedure 3. As such, Rule 4 of the
Tennessee Rules of Appellate Procedure governs the time for filing the notice of appeal.
According to Rule 4(a):
In an appeal as of right to the Supreme Court, Court of Appeals or Court of
Criminal Appeals, the notice of appeal required by Rule 3 shall be filed
with and received by the clerk of the trial court within 30 days after the date
of entry of the judgment appealed . . . .
The time limit for filing a notice of appeal is mandatory and jurisdictional. Albert v.
Frye, 145 S.W.3d 526, 528 (Tenn. 2004); Binkley v. Medling, 117 S.W.3d 252, 255
(Tenn. 2003). This Court can neither waive nor extend the time period. Tenn. R. App. P.
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2 and 21(b); Flautt & Mann v. Council of City of Memphis, 285 S.W.3d 856, 869
(Tenn. Ct. App. 2008); Jefferson v. Pneumo Serv. Corp., 699 S.W.2d 181, 184 (Tenn.
Ct. App. 1985). The failure to file a timely notice of appeal deprives this Court of
jurisdiction to hear the matter. Flautt, 285 S.W.3d at 869.
As noted above, the order appealed was entered on July 17, 2019 and Mr.
Houston’s notice of appeal was filed on September 3, 2019, which was well outside the
30-day time period set out in Tennessee Rule of Appellate Procedure 4(a), supra. We
are, however, cognizant of the fact that Mr. Houston was incarcerated at the time he filed
his appeal. As such, Tennessee Rule of Civil Procedure 5.06, i.e., the so-called Prisoner
Mailbox Rule, is triggered. The Rule provides, in relevant part:
If papers required or permitted to be filed pursuant to the rules of civil
procedure are prepared by or on behalf of a pro se litigant incarcerated in a
correctional facility and are not received by the clerk of the court until after
the time fixed for filing, filing shall be timely if the papers were delivered
to the appropriate individual at the correctional facility within the time
fixed for filing.
The Prisoner Mailbox Rule serves to protect inmates from untimely filings when prison
officials are late mailing documents—not when inmates are late requesting and
submitting documents. Here, Mr. Houston’s notice of appeal states:
Notice is hereby given that Rocky Joe Houston, the petitioner in the above
named case, hereby appeals to the Court Of Appeals At Knoxville
Tennessee For Eastern District Of Tennessee from the final judgment and
order dismissing the petitioner’s petition on 16th day of July 2019. On this
day 28 of August 2019.
(emphasis added). Based on the fact that Mr. Houston signed his notice of appeal on
August 28, 2019, we may reasonably infer that the notice was still in his possession at
that time and, as such, was not “delivered to the appropriate individual at the correctional
facility” until August 28, 2019 or later. Therefore, even giving Mr. Houston the benefit
of the mailbox rule, we cannot conclude that he tendered his notice of appeal for mailing
within the applicable 30-day time period. As such, Mr. Houston’s notice of appeal is
untimely, and this Court lacks jurisdiction over the appeal. Flautt, 285 S.W.3d at 869.
As a final matter, we note that, although Mr. Houston submitted his appeal on
brief, on November 10, 2019, he filed a motion with this Court requesting oral argument.
Having dismissed Mr. Houston’s appeal for lack of jurisdiction, his motion for oral
argument is rendered moot. Norma Faye Pyles Lynch Family Purpose, LLC v. Putnam
Co., Tennessee, 301 S.W.3d 196, 204 (Tenn. 2009) (citations omitted) (“A moot case is
one that has lost its justiciability either by court decision, acts of the parties, or some
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other reason occurring after commencement of the case.”). As such, we deny the
motion.
For the foregoing reasons, the appeal is dismissed and Appellant’s motion for oral
argument is denied. The case is remanded for such further proceedings as may be
necessary and are consistent with this opinion. Costs of the appeal are assessed against
the Appellant, Rocky Joe Houston. Because Mr. Houston is proceeding in forma
pauperis in this appeal, execution for costs may issue if necessary.
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KENNY ARMSTRONG, JUDGE
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