Jerry Alan Thigpen v. The Estate of Kent Howard Smith

03/09/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 9, 2022 Session
JERRY ALAN THIGPEN v. THE ESTATE OF KENT HOWARD SMITH
ET AL.
Appeal from the Chancery Court for Trousdale County
No. 7663 William B. Acree, Senior Judge
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No. M2020-01015-COA-R3-CV
___________________________________
Appellant’s brief in this case fails to substantially comply with Rule 27 of the Tennessee
Rules of Appellate Procedure. Therefore, we dismiss this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which JOHN W.
MCCLARTY and CARMA DENNIS MCGEE, JJ., joined.
Jerry Alan Thigpen, Hartsville, Tennessee, Pro se.
C. Tracey Parks, Lebanon, Tennessee, for the appellee, The Estate of Kent Howard Smith
Jeffrey O. Powell, Madison, Tennessee, for the appellees, Dion Deshay Burnley and Marie
Deandra Burnley.
MEMORANDUM OPINION1
I. FACTUAL AND PROCEDURAL HISTORY
So as not to tax the length of this Opinion, we will provide a brief overview of some
of the main events in this case’s protracted procedural history. Plaintiff/Appellant Jerry
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This 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be designated “MEMORANDUM OPINION,” shall not be published, and shall not be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.
Alan Thigpen (“Appellant”) filed a complaint in the Chancery Court for Trousdale County
(the “trial court”) on December 19, 2018 against Defendants/Appellees Kent Howard
Smith, Dion Deshay Burnley, and Marie Deandra Burnley (collectively, “Defendants”) for
malicious prosecution and “intentional infliction of mental anguish.” Appellant had
apparently brought his original action against Defendants on September 6, 2017, and then
voluntarily non-suited that case on or about August 7, 2018. Appellant was granted leave
to file an amended complaint in an order filed in the trial court on May 6, 2019. In his
proposed amended complaint, Appellant brought causes of action for malicious
prosecution, intentional infliction of emotional distress, and conspiracy against
Defendants.
By order filed June 29, 2020, the trial court dismissed Appellant’s claims against
Dion Deshay Burnley and Marie Deandra Burnley (together, “the Burnley Defendants”)
upon the Burnley Defendants’ motion for judgment on the pleadings. Another order was
filed in the trial court on June 29, 2020, recognizing Mr. Smith’s death and stating that if
Appellant intended to substitute a party, he should proceed in accordance with Rule 25 of
the Tennessee Rules of Civil Procedure. On July 24, 2020, Appellant filed his first notice
of appeal to this Court. The same day, Appellant filed a motion to recuse the trial court
judge, citing Rule 10B of the Rules of the Supreme Court of Tennessee, and a motion to
reconsider the dismissal of the Burnley Defendants, citing Rule 60.02 of the Tennessee
Rules of Civil Procedure. The trial court denied both of these motions in orders filed March
3, 2021.
In the meantime, on October 14, 2020, Kristal Smith Coughlin, as Administrator of
the Estate of Mr. Smith, filed a motion to dismiss as to Mr. Smith in the trial court, asserting
that Appellant had failed to file a motion of substitution within ninety days of the
suggestion of Mr. Smith’s death, and therefore the action should be dismissed pursuant to
Rule 25.01 of the Tennessee Rules of Civil Procedure. On November 10, 2020, Appellant
filed a motion to substitute Ms. Coughlin for Mr. Smith. On December 2, 2020, the trial
court signed an order dismissing the cause of action with prejudice as to Mr. Smith, which
was filed on January 19, 2021. On February 22, 2021, Appellant filed another motion
seeking, inter alia, to substitute Ms. Coughlin for Mr. Smith. The trial court denied this
motion in a general order filed March 8, 2021. Appellant filed another notice of appeal in
this Court on February 22, 2021, appealing the trial court’s January 19, 2021 order.
II. ISSUES PRESENTED
Appellant raises numerous issues,2 but we conclude that the controlling issue in this
2
Below are the issues Appellant raises, copied from his brief:
1. The trial court abused its discretion conducting farcical show trials willfully complicit
with conspiratorial actions against Jerry Alan Thigpen.
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appeal is his failure to substantially comply with Rule 27 of the Tennessee Rules of
Appellate Procedure.
IV. DISCUSSION
As an initial matter, Appellant appears to raise concerns regarding the trial court’s
jurisdiction. Because we are required to address issues of subject matter jurisdiction, we
will briefly address Appellant’s concerns. See Tenn. R. App. P. 13 (“The appellate court
shall [] consider whether the trial and appellate court have jurisdiction over the subject
matter, whether or not presented for review[.]”). It appears that Appellant argues that
because he perfected an appeal to this Court on July 24, 2020, the trial court was divested
of its subject matter jurisdiction at that time.
Appellant is correct that “once a party perfects an appeal from a trial court’s final
judgment, the trial court effectively loses its authority to act in the case without leave of
the appellate court. Perfecting an appeal vests jurisdiction over the case in the appropriate
appellate court.” First Am. Tr. Co. v. Franklin-Murray Dev. Co., L.P., 59 S.W.3d 135,
141 (Tenn. Ct. App. 2001) (footnote and citations omitted). However, an appeal is not
perfected, and thus this Court does not assume subject matter jurisdiction, until the trial
court enters a final order. See Tenn. R. App. P. 3(a) (“In civil actions every final judgment
entered by a trial court from which an appeal lies to the . . . Court of Appeals is appealable
2. The trial court acted wanting jurisdiction habitually to harm and injure Appellant in over
one dozen cases over which he presided.
3. The trial court’s discretion is and remains unsound and corrupt.
4. The trial court has a past record checkered with unsound or corrupt decisions.
5. The Trial Clerk & Master and her office abused her discretion willfully complicit with
conspiratorial actions against Jerry Alan Thigpen flagrantly and habitually.
6. The Appellate Court Clerk and his office is also willfully complicit with conspiratorial
actions against Jerry Alan Thigpen flagrantly and habitually.
7. All TN Bar attorneys involved in all cases presided over by the trial court in Trousdale
county committed legal malpractice.
8. All conspirators have a propensity and proclivity for the Hate crimes herein alleged and
display flagrant patterns of abuse.
9. The trial court has acted in the famous literal sham, farce, mockery criminal persecution
case to further injure and harm this appellant.
10. All cases to which the trial court should be over-turned and vacated.
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as of right. Except [under circumstances not present here], if multiple parties or multiple
claims for relief are involved in an action, any order that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties is not enforceable or
appealable and is subject to revision at any time before entry of a final judgment
adjudicating all the claims, rights, and liabilities of all parties.”).
At the time Appellant filed his first notice of appeal on July 24, 2020, much was left
outstanding in this case. For example, the issue of whether a defendant would be substituted
for Mr. Smith in light of his death was outstanding, and the order dismissing him was not
filed in the trial court until January 19, 2021. Therefore, a final judgment adjudicating the
rights and liabilities of all the parties in this case had not yet been entered by the trial court.
Thus, this Court did not yet have jurisdiction when Appellant filed his first notice of appeal.
Rather, Appellant’s July 24, 2020 notice of appeal was premature. See Tenn. R. App. P.
4(d) (“A prematurely filed notice of appeal shall be treated as filed after the entry of the
judgment from which the appeal is taken and on the day thereof.”).
As to the remainder of the issues on appeal, unfortunately, our ability to conduct
proper appellate review is hindered by Appellant’s failure to sufficiently comply with Rule
27 of the Tennessee Rules of Appellate Procedure. Rule 27 states, in pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
(1) A table of contents, with references to the pages in the brief;
(2) A table of authorities, including cases (alphabetically arranged), statutes
and other authorities cited, with references to the pages in the brief where
they are cited;
* * *
(5) A statement of the case, indicating briefly the nature of the case, the
course of proceedings, and its disposition in the court below;
(6) A statement of facts, setting forth the facts relevant to the issues presented
for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of argument, setting
forth: (A) the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities and
appropriate references to the record (which may be quoted verbatim) relied
on[.]
Tenn. R. App. P. 27(a).
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Here, Appellant’s brief does not substantially comply with Rule 27. First,
Appellant’s brief contains no table of contents. While Appellant ostensibly includes a table
of authorities, the table does not include “references to the pages in the brief where [the
authorities] are cited[.]” Appellant’s brief also does not contain a statement of the case.
Instead, his statement of facts more closely resembles a statement of the case, as it details
some of the proceedings that occurred in the trial court; the statement of facts, however,
contains none of the required references to the record. In the argument section of
Appellant’s brief, he cites to the record only four times.
Appellant’s argument is deficient in other ways. While Appellant includes citations
to legal authority at times throughout his brief, he leaves many of his assertions
unsupported by citation to legal authority or the record. See Hawkins v. Hart, 86 S.W.3d
522, 531 (Tenn. Ct. App. 2001) (“In order for an issue to be considered on appeal, a party
must, in his brief, develop the theories or contain authority to support the averred position
as required by Tennessee Rules of Appellate Procedure 27(a).”). Even when he does cite
to legal authority, however, Appellant’s argument is still lacking. For example, he includes
a long block quote from one case in his argument regarding subject matter jurisdiction;3
we have addressed that issue, supra. Besides that, he cites to only one other case in the
argument section of his brief. In that second citation, he quotes a portion of a case for
purposes of explaining the applicable standard of review,4 but he fails to explain how that
case supports his positions on appeal. Cf. Lacy v. Vanderbilt Univ. Med. Ctr., No. M2018-
00832-COA-R3-CV, 2019 WL 1450390, at *3 (Tenn. Ct. App. Apr. 1, 2019) (noting that
the appellant’s brief was deficient in that while some cases were cited, the appellant failed
to provide “any analysis of the cases or discuss how they relate to her position”); Bowman
v. Bank of Am., No. M2013-00424-COA-R3-CV, 2014 WL 890934, at *5 (Tenn. Ct. App.
Mar. 5, 2014) (holding that citation of authority for the applicable standard of review was
not sufficient in the absence of citations related to the appellant’s substantive arguments).
Additionally, it is difficult to discern some of Appellant’s arguments. See Sneed v. Bd. of
Pro. Resp. of Supreme Ct., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the
courts, trial or appellate, to research or construct a litigant’s case or arguments for him or
her, and where a party fails to develop an argument in support of his or her contention or
merely constructs a skeletal argument, the issue is waived.”).
We are mindful of the fact that Appellant is proceeding pro se. Nevertheless,
“[w]hile entitled to fair and equal treatment before the courts, a pro se litigant is still
required to comply with substantive and procedural law as do parties represented by
counsel.” Gilliam v. Gilliam, No. M2007-02507-COA-R3-CV, 2008 WL 4922512, at *3
(Tenn. Ct. App. Nov. 13, 2008) (citing Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn.
Ct. App. 2003)). As explained by this Court, “[t]he courts should take into account that
many pro se litigants have no legal training and little familiarity with the judicial system.
3
Imbedded in the block quote are the court’s citations to other authorities.
4
Again, the portion of the case cited by Appellant includes citation to another case.
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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.” Jackson v. Lanphere, No.
M2010-01401-COA-R3-CV, 2011 WL 3566978, at *3 (Tenn. Ct. App. Aug. 12, 2011)
(quoting Hessmer, 138 S.W.3d at 903 (internal citations omitted)). “[T]he courts must not
excuse pro se litigants from complying with the same substantive and procedural rules that
represented parties are expected to observe.” Hessmer, 138 S.W.3d at 903.
We have previously held on numerous occasions that such failure to substantially
comply with Rule 27 is grounds for dismissal of an appeal. See, e.g., Breeden, 2020 WL
6285300, at *1 (Tenn. Ct. App. Oct. 27, 2020) (“The appellant’s brief significantly fails to
comply with Tennessee Rule of Appellate Procedure 27. Accordingly, we find that any
issues on appeal are waived and we dismiss the appeal.”); Thomas v. Bank of Am., N.A.,
No. M2015-01849-COA-R3-CV, 2017 WL 2859813, at *4 (Tenn. Ct. App. July 5, 2017)
(“Although we are mindful of Thomas’s pro se status and have attempted to give her the
benefit of the doubt when possible, we cannot write her brief for her nor can we create
arguments or issues for her where her brief fails to contain any coherent argument. Based
upon Thomas’s failure to comply with Tenn. R. App. P. 27 and R. Tenn. Ct. App. 6, we
conclude that Thomas has waived any issues raised, and the appeal should be dismissed.”).
Therefore, while we acknowledge Appellant’s attempts to proceed pro se and express no
opinion as to the merits of his arguments, we simply cannot properly review this appeal
given the state of the briefing.
It is abundantly clear that Appellant is dissatisfied with the rulings of the trial court.
However, that does not end our inquiry. It is also the responsibility of Appellant to point
to the actions of the trial court that he claims are in error and then show how the actions
are erroneous by including citations to the record and producing legal authority to show
the claimed error. Without this basic information, the reviewing court is required to comb
the record in search of error. This is not the function of a court of review and runs counter
to the Rules of Appellate Procedure. Consequently, Appellant’s appeal is dismissed for
failure to substantially comply with Rule 27.
V. CONCLUSION
This appeal is dismissed, and this cause is remanded to the trial court for all further
proceedings as are necessary and consistent with this Opinion. Costs of the appeal are taxed
to Appellant Jerry Alan Thigpen, for which execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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