Irvin v. City of Clarksville

• Decision Date: 07 October 1988
• Citation: 767 S.W.2d 649
• Parties: Robert T. IRVIN, Plaintiff/Appellant, v. CITY OF CLARKSVILLE, Defendant/Appellee. 767 S.W.2d 649
• Court: Tennessee Court of Appeals

Page 649

767 S.W.2d 649

Robert T. IRVIN, Plaintiff/Appellant, v. CITY OF CLARKSVILLE, Defendant/Appellee.

767 S.W.2d 649

Court of Appeals of Tennessee Middle Section, at Nashville.

Oct. 7, 1988.

Permission to Appeal Denied by

Supreme Court Jan. 3, 1989.

Robert T. Irvin, Mount Juliet, for plaintiff/appellant.

Edd S. Hurt, Jr., Clarksville, for the defendant/appellee.

OPINION

KOCH, Judge.

This appeal involves a city's demolition of a fire-damaged house. An owner of an interest in the property filed a pro se action in the Law and Equity Court for Montgomery County seeking compensatory and punitive damages. The trial court heard the matter without a jury and entered a judgment for the city at the close of the plaintiff's proof. The property owner has appealed. We affirm the judgment of the trial court.

I.

Robert Irvin and his mother, Louise Irvin, are "legal co-owners" of a house on Ninth Street in Clarksville. After the house was seriously damaged by fire, they applied to the Clarksville-Montgomery County Regional Planning Commission ("Commission") for funds to repair it. However, while the loan application was pending, the Commission gave written notice to Louise Irvin that a hearing had been scheduled to determine whether the remnants of the house should be torn down. Robert Irvin had actual notice of the hearing even though he was not served with written notice.

The Commission conducted the hearing on June 26, 1978. It found that the house was dangerous and detrimental to the health of the residents of Clarksville and directed that it be torn down unless Mrs. Irvin substantially improved it within 120 days. On August 16, 1978, Mrs. Irvin signed a document stating that repairs to the house were impractical and authorizing the City of Clarksville ("City") to demolish the building. It was thereafter destroyed, and Robert Irvin's long odyssey through the legal system began.

Mr. Irvin filed a pro se complaint in the Law and Equity Court for Montgomery County in June, 1979, alleging that his mother's authorization had been coerced by threats of imprisonment and that the Commission's procedure violated his due process rights. The trial court dismissed the action in March, 1980 for lack of subject matter jurisdiction. This Court reversed the trial court's decision on October 20, 1980. ¹

On remand, Mr. Irvin retained counsel who filed an amended complaint in March, 1981. Among other things, the amended complaint alleged that Mr. Irvin had been deprived of the value of his property without due process, that the City had "negligently torn down a piece of property owned by two owners without obtaining the consent of both parties," that the City was guilty of "improper discrimination" because it had not torn down other houses in greater need of repair, and that the City's actions were "wanton and willful in the disregard of proper procedure."

Mr. Irvin became unhappy with his lawyer because of the slow progress of the suit. In December, 1982, his lawyer moved to withdraw as counsel after Mr. Irvin filed a complaint with the Board of Professional Responsibility. The trial court granted the motion, and in February, 1983, Mr. Irvin notified the court that he intended to represent himself during the remainder of the proceedings.

In May, 1983, Mr. Irvin filed a second amended complaint increasing the prayer for damages. The trial court heard the case without a jury on July 7, 1983 and dismissed the case at the close of Mr. Irvin's proof after finding that Mr. Irvin had failed to prove either that he owned an interest in the house or that he had been damaged by the house's demolition.

Mr. Irvin filed a flurry of motions and other documents after the trial. Among them were a "petitioner to rehear" and a motion for new trial. The trial court denied Mr. Irvin's motion to rehear on September 16, 1983, and Mr. Irvin filed a notice of appeal on September 21, 1983.

For some reason not apparent in the record, no action was taken in this case for over three years. On February 9, 1987, the trial court entered a second order denying Mr. Irvin's petition to rehear. Mr. Irvin filed a second notice of appeal on March 3, 1987. A woefully inadequate record was filed in this Court in June, 1987. We ordered the preparation of a supplemental record which was filed in September, 1987.

II.

We take up first Mr. Irvin's assertion that the trial court failed to provide him the "liberal construction due a pro se hearing". Mr. Irvin does not state precisely how the trial court failed to make appropriate allowances for the fact that he was representing himself. We surmise that his complaint is based on the length of time it took to get the case to trial and on the trial court's dismissal of his complaint at the close of his proof.

Conducting litigation involving a pro se litigant can be difficult and challenging. On one hand, a trial judge must accommodate the pro se litigant's legal naivete, and, on the other hand, he must not allow the pro se litigant an unfair advantage because the litigant represents himself. As Judge Blackburn noted on the first appeal of this case:

Of course this status of affairs presents a tremendous burden for the Judge of the Court to carry in first seeing that the litigation is conducted in an orderly fashion and second that the parties are given every opportunity to present their grievances for resolution. Such requires great skill on the part of the Judge both intellectually and diplomatically.

Irvin v. Clarksville-Montgomery County Regional Planning Comm'n, Montgomery Law & Equity, slip op. at 2 (Tenn.Ct.App. Oct. 20, 1980).

Pro se litigants who invoke the complex and sometimes technical procedures of the courts assume a very heavy burden. Gray v. Stillman White Co., 522 A.2d 737, 741 (R.I.1987). Conducting a trial with a pro se litigant who is unschooled in the intricacies of evidence and trial practice can be difficult. Oko v. Rogers, 125 Ill.App.3d 720, 81 Ill.Dec. 72, 75, 466 N.E.2d 658, 661 (1984). Nonetheless, trial courts are expected to appreciate and be understanding of the difficulties encountered by a party who is embarking into the maze of the judicial process with no experience or formal training.

Parties who choose to represent themselves are entitled to fair and equal treatment. Childs v. Duckworth, 705 F.2d 915, 922 (7th Cir.1983). However, they are not excused from complying with applicable substantive and procedural law, Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.1984); Wolfel v. United States, 711 F.2d 66, 67 (6th Cir.1983), and they must follow the same procedural and substantive law as the represented party. See, e.g., Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987); Heinsch v. Lot 27, 399 N.W.2d 107, 109 (Minn.Ct.App.1987).

Accordingly, the United States Court of Appeals for the District of Columbia has held:

At least where a litigant is seeking a monetary award, we do not believe pro se status necessarily justifies special consideration ... While such a pro se litigant must of course be given fair and equal treatment, he cannot generally be permitted to shift the burden of litigating his case to the courts, nor to avoid the risks of failure that attend his decision to forgo assistance.

Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C.Cir.1983).

Pro se litigants are entitled to the same liberality of construction with regard to their pleadings that Tenn.R.Civ.P. 1, 8.05 & 8.06 afford any other litigant. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). The record convinces us that the trial court afforded Mr. Irvin all the liberality in procedural matters due him.

Mr. Irvin points to the long delay in setting a trial date as evidence that the trial court did not give him proper consideration. While the record shows that obtaining a hearing date was not an easy task, we do not attribute the delay to the trial court.

A special judge from Nashville heard the case because the regular judge had recused himself at Mr. Irvin's request. In May, 1981, Mr. Irvin's counsel filed a motion to set the case. However, because the trial judge was in Nashville, Mr. Irvin's attorney was in Chattanooga, and defense counsel was in Clarksville, the parties had difficulty coordinating their schedules. Mr. Irvin's counsel withdrew from the case before a trial date could be set. Mr. Irvin filed his own motion to set on February 22, 1983, and the case was heard on July 7, 1983.

The delay in bringing the case to trial was, in large measure, due to the conduct of the parties. No evidence shows that the delay affected the suit's outcome. Therefore, in accordance with Tenn.R.App.P. 36(b), we find this issue to be without merit.

III.

The briefs and other papers Mr. Irvin has filed in this Court do not begin to meet the requirements of the Tennessee Rules of Appellate Procedure. However, recognizing the admonition in Tenn.R.App.P. 1 that the appellate rules should be construed to afford all parties a hearing on the merits, we have exercised our prerogative pursuant to Tenn.R.App.P. 2 to relax the strict requirements of the appellate rules insofar as Mr. Irvin's papers are concerned.

There are other omissions in the appeal we cannot waive. Mr. Irvin seeks to raise certain factual issues and yet has elected not to file a transcript or a statement of the evidence. His failure to do so has left him at a distinct disadvantage. In the absence of a transcript, this Court presumes that sufficient evidence existed to support the trial court's decision. Daniel v. Metropolitan Gov't of Nashville, 696 S.W.2d 8, 10-11 (Tenn.Ct.App.1985); Lallemand v. Smith, 667 S.W.2d 85, 88 (Tenn.Ct.App.1983).

IV.

One issue we can consider is whether the trial court erred when it found that Mr. Irvin failed to prove an ownership interest in the property. From what we can glean...