Ski Chalet Vill. Owners Club, Inc. v. Pate, No. E2019-00982-COA-R3-CV

CourtTennessee Court of Appeals
Writing for the CourtTHOMAS R. FRIERSON, II, JUDGE
PartiesSKI CHALET VILLAGE OWNERS CLUB, INC. v. RICHARD PATE ET AL.
Decision Date19 June 2020
Docket NumberNo. E2019-00982-COA-R3-CV

SKI CHALET VILLAGE OWNERS CLUB, INC.
v.
RICHARD PATE ET AL.

No. E2019-00982-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

February 19, 2020 Session
June 19, 2020


Appeal from the Circuit Court for Sevier County
No. 16-CV-314-III
Robert E. Lee Davies, Senior Judge

Following a jury trial in the underlying contract action and upon a verdict finding misrepresentation/concealment, the trial court entered a monetary judgment in favor of the plaintiff, Ski Chalet Village Owners Club, Inc. ("Ski Chalet"), and against the defendants, Richard Pate and Clint Bowman d/b/a P&B Construction & Remodeling, and J. Ron Dillmon, jointly and severally, in the amount of $166,401.26 for compensatory damages plus $190,000.00 in punitive damages.1 The trial court also awarded to Ski Chalet a $1,000.00 judgment against Mr. Dillmon on a separate claim of defamation. Upon Mr. Dillmon's subsequent pro se motion, the trial court denied his request for a new trial, finding, inter alia, that Mr. Dillmon had failed to meet his burden of providing a valid excuse for his failure to appear at trial, failed to file any pleadings stating the reason for his failure to appear, and refused to testify under oath when given an opportunity to explain his failure to appear. In addition, the trial court found that an affidavit executed by a physician who had treated Mr. Dillmon, which Mr. Dillmon had filed with his motion for a new trial, did not sufficiently support a valid reason for Mr. Dillmon's failure to appear. The trial court subsequently denied a motion filed by Mr. Dillmon for production of the trial transcript. Concerning a motion for the trial court judge's recusal and a motion for contempt against opposing counsel filed by Mr. Dillmon after he had filed a notice of appeal, the trial court entered an order finding that it did not have subject matter jurisdiction to consider either motion. Mr. Dillmon has appealed. Discerning no reversible error, we affirm. Upon an issue raised by Ski Chalet, we decline to find the appeal frivolous and deny Ski Chalet's request for attorney's fees and expenses on appeal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded

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THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which JOHN W. MCCLARTY and ARNOLD B. GOLDIN, JJ., joined.

J. Ron Dillmon, Jefferson City, Tennessee, Pro Se.

Brian T. Mansfield, Sevierville, Tennessee, for the appellee, Ski Chalet Village Owners Club, Inc.

OPINION

I. Factual and Procedural Background

Ski Chalet operates as a property association for owners within the Chalet Village community in Gatlinburg, Tennessee. Ski Chalet filed a complaint on May 4, 2016, against Richard Pate and Clint Bowman, d/b/a P&B Construction and Remodeling ("P&B"); Mr. Dillmon, d/b/a Restoration Services Unlimited; and Joseph M. High, d/b/a CCC&C or Certified Climate Control & Construction, Inc. ("CCC&C") for breach of contract, intentional misrepresentation, conversion and fraud.2 Ski Chalet averred that on October 17, 2015, it entered into a contract with P&B to repair a swimming pool. Ski Chalet alleged that throughout the construction project, its representatives were alarmed concerning the costs, invoicing, and lack of documentation from P&B and specifically the way the administrator of the project, Mr. Dillmon, had been communicating with Ski Chalet's members. In addition, Ski Chalet alleged that after further investigation, it had discovered that the defendants used a defunct entity, CCC&C, to overcharge Ski Chalet throughout the project.

The defendants each filed a separate answer to the complaint while utilizing the same counsel. This counsel subsequently filed a motion to withdraw from representation of all the defendants, which was granted by the trial court in an order entered on June 21, 2017. On December 29, 2017, Mr. Dillmon, now acting without benefit of counsel, filed a motion to alter or enlarge time, requesting a continuation of the trial date due to a medical condition. Mr. Dillmon stated that he had undergone "at the Mayo Clinic a cardiac catheterization on November 3, 2017." Mr. Dillmon attached to his motion a letter with an electronic signature from Daniel W. Macklin, M.D., with the Executive Health Program at Mayo Clinic in Jacksonville, Florida, addressed "To Whom It May Concern," and dated December 1, 2017. In this letter, Dr. Macklin stated in pertinent part:

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Mr. Jack R. Dillmon underwent coronary angiography with angioplasty and stent placement in the left anterior descending coronary artery on September 7, 2017. He has a history of chest pain and unstable angina. He is scheduled to return to Mayo Clinic Florida in December for further evaluation and testing.

I believe that it is medically necessary that he avoid the stress of legal proceedings until his cardiac status has stabilized and he has adequately recovered from the recent angioplasty/stent. I anticipate he should be able to proceed with legal proceedings in approximately 6 months (May 2018).

Ski Chalet filed an objection to the motion to alter or enlarge time, attaching, inter alia, two contemporaneous pro se pleadings filed by Mr. Dillmon in a lawsuit initiated by Mr. Dillmon in the Sevier County General Sessions Court and a 2016 transcript excerpt from a lawsuit initiated by Mr. Dillmon in the Knox County Circuit Court. In the general sessions suit, Mr. Dillmon's pleadings reflected that he had sought a continuance due to his medical condition and subsequently sought to have a default judgment overturned that was apparently entered due to his failure to appear. The transcript excerpt from the circuit court suit reflected that the circuit court judge directed from the bench that the action be dismissed due to Mr. Dillmon's failure to appear for a hearing. Mr. Dillmon subsequently filed a response to Ski Chalet's objection in this action, along with his own affidavit.

Following a discovery dispute between Mr. Dillmon and Ski Chalet, trial court judge Rex Henry Ogle entered an order of recusal on May 10, 2018, transferring this case to Judge Telford E. Forgety, Jr. Another order of recusal was then filed on June 29, 2018, in which Judge Forgety and the other judges of the Fourth Judicial District recused themselves. The Tennessee Supreme Court entered an order on October 1, 2018, appointing Senior Judge Robert E. Lee Davies to hear the case.

Mr. Dillmon filed a "Motion to Stay Trial and Other Civil Proceedings" on October 25, 2018, requesting that the trial court stay scheduling matters, discovery deadlines, and the trial date until criminal proceedings against Mr. Dillmon involving charges of arson and filing false or fraudulent insurance claims were resolved. Ski Chalet filed a response to the motion to stay trial and other civil proceedings, arguing, inter alia, that there was no legal basis to grant the motion and that this was an attempt by Mr. Dillmon to delay trial. Following a hearing at which Ski Chalet's counsel and Mr. Dillmon appeared, the trial court entered an order on November 9, 2018, denying Mr. Dillmon's motion to stay upon finding, inter alia, that the civil and criminal cases were

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"completely different and involve[d] completely different issues" and that Mr. Dillmon would therefore suffer "no hardship" as a result.3

In its November 9, 2018 order, the trial court also made various determinations concerning discovery, including confirming that Ski Chalet had given notice that it would not take any depositions in this case and stating that Mr. Dillmon had represented that he intended to take up to sixteen depositions. The trial court directed that Mr. Dillmon would "have until February 15, 2019 to complete any depositions he wishes to take." The trial court set a pretrial conference for February 26, 2019, and set trial for March 13, 2019.

On December 7, 2018, Mr. Dillmon filed a "Motion to Set Aside" the November 9, 2018 order, arguing, inter alia, that in denying the motion to stay, the trial court had not properly considered the applicable factors set forth in Bell v. Todd, 206 S.W.3d 86, 94 (Tenn. Ct. App. 2005). The trial court entered an order on December 13, 2018, noting that Mr. Dillmon had not filed the motion pursuant to a specific rule of civil procedure and ruling that the court would consider the motion pursuant to Tennessee Rule of Civil Procedure 54.02(1). The trial court set a hearing on the motion for December 20, 2018.

Mr. Dillmon then filed a pleading entitled, "Notice Of Availability And Enlargement Of Time We Beg This Court For An Instant Ruling," on December 14, 2018, requesting that the trial court reschedule the hearing on his motion due to medical treatment that Mr. Dillmon purportedly required. In this "notice," Mr. Dillmon stated in part that he would "be traveling to Mayo Clinic in Jacksonville, FL for scheduled medical care on December 15, 2018." Mr. Dillmon also stated in this document that Ski Chalet's counsel, attorney Brian T. Mansfield, had not acted appropriately and that the trial court judge had exhibited bias throughout the case. Mr. Dillmon did not, however, move for the judge's recusal.

On December 20, 2018, the trial court conducted a hearing for which Mr. Dillmon failed to appear. In an order entered that same day, the trial court explained its decision to proceed with the hearing on Mr. Dillmon's motion to set aside without Mr. Dillmon present, detailing the court's attempts to respond to Mr. Dillmon's motion for continuance by scheduling a teleconference with the parties, in which Mr. Dillmon did not participate, as well as the court's attempts to ascertain whether Mr. Dillmon had traveled to Florida or had decided to stay home, as he had indicated during one telephone call with the trial court judge's assistant. The trial court specifically stated in its order that after waiting twenty minutes to determine if Mr. Dillmon would appear for the

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hearing, the court decided to...

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