Murray v. Miracle

• Court: Tennessee Court of Appeals
• Writing for the Court: D. MICHAEL SWINEY, J.
• Citation: Murray v. Miracle, 457 S.W.3d 399 (Tenn. App. 2014)
• Decision Date: 23 September 2014
• Docket Number: No. E2013–00498–COA–R3–CV.,E2013–00498–COA–R3–CV.
• Parties: Bobby MURRAY, et al. v. Dennis MIRACLE, et al.

457 S.W.3d 399

Bobby MURRAY, et al.

v.Dennis MIRACLE, et al.

No. E2013–00498–COA–R3–CV.

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

July 9, 2014 Session.

Sept. 23, 2014.

Feb. 19, 2015.

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

D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which JOHN W. McCLARTY and W. NEAL McBRAYER, JJ., joined.

D. MICHAEL SWINEY, J.

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.

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 (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 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 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 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...