Donna Faye Thompson v. Kim Kail

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

December 10, 2013 Session

DONNA FAYE THOMPSON

v.

KIM KAIL

Appeal from the Crockett County Circuit Court

No. 3280 J. Weber McCraw, Judge, Sitting by Designation

No. W2013-01049-COA-R3-CV - Filed March 12, 2014

This is an appeal from the trial court’s grant of a motion to dismiss. The complaint alleged

that the defendant circuit court clerk failed to timely send to the appellate court a case file

in a matter other than the case that was on appeal. The defendant court clerk filed a motion

to dismiss for failure to state a claim; the trial court granted the motion. The plaintiff appeals.

Discerning no error, we affirm.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J., and

J. S TEVEN S TAFFORD, J., joined.

Donna F. Thompson, Dyer, Tennessee, self represented

Brandon O. Gibson, Jackson, Tennessee, for Defendant/Appellee Kim Kail

MEMORANDUM OPINION 1

F ACTS AND P ROCEEDINGS B ELOW

This appeal arises from one of many lawsuits filed by Plaintiff/Appellant Donna F.

Thompson stemming from the foreclosure of her property. Pertinent to this appeal, at least

two of the cases filed by Thompson have been appealed to this Court. See Thompson v.

Deutsche Bank, No. W2011-00329-COA-R3-CV, 2012 WL 1980373 (Tenn. Ct. App. June

4, 2012) (“Case No. 3208”) and Sturgis v. Thompson, 415 S.W.3d 843 (Tenn. Ct. App.

2011) (“Case No. 3209”). In this appeal, we will refer to these two prior cases as “Case No.

3208” and “Case No. 3209,” respectively.

Thompson filed the instant lawsuit in December 2011 in the Chancery Court of Shelby

County, Tennessee against the clerk of the Crockett County Circuit Court,

Defendant/Appellee Kim Kail. The complaint is entitled, “Misuse of Authority Causing

Damages to the Plaintiff’s Pending Appealed Case.” In the complaint, Thompson appears

to assert that Kail failed to timely send to the Court of Appeals the case file from Case No.

3208, in order to aid this Court in its consideration of Thompson’s appeal of Case No. 3209.2

The complaint states in its entirety:

Come now the Plaintiff claim [sic] that the Defendant misused its authority by

not sending her case to the court of appeals on time for review. The Plaintiff’s

case No.3208 was appealed to the court of appeal[s] on 2/2/2011 and the

Defendant failed to meet the required deadline of the Tennessee law. The

Defendant did not send the Plaintiff’s case files until November 2011 that is

seven months pass the Defendant’s deadline. There was another case no. 3209

which was heard with this case no. 3208 in general sessions court at the same

time. These two cases was combined [sic] together against the Plaintiff’s will

1

Rule 10. Memorandum Opinion

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.

Tenn. Ct. App. R. 10.

2

As noted below, Case No. 3209 was dismissed by this Court for lack of an appeal bond. Sturgis

v. Thompson, 415 S.W.3d at 847.

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but court proceeded on with both cases. The ruling on the case was unfair to

the Defendant in general sessions court and the Defendant appealed to circuit

court of Crockett county Tennessee.

The case got dismissed from the circuit court and the Defendant [Thompson]

appealed to the court of appeals at Jackson Tennessee on 8/19/2010. The other

case no. 3208 got separated from case no. 3209 due to it was pending [sic] a

trial court date in circuit court of Crockett county Tennessee. The case

no.3208 the defendant won and was rewarded funds for damages. There was

no exchange of fund in case no. 3208 due to the appeal to circuit court. The

case no. 3208 also got dismissed and was appealed to the court of appeals

about four months later after case no. 3209.

The damages in this case now is [sic] that Defendant [Kail] failed to send case

no. 3208 files to the court of appeals on time and this hurt the Defendant

[Thompson] in case no. 3209. In case no. 3209 the defendant [Thompson] lost

the case in the court of appeals due to case no. 3208 was not sent to the court

of appeals on time to back up the defendant [Thompson’s] argument against

case no. 3209. These two cases is about real property with a mortgage. [sic]

The mortgage value [was] $135,000 before damages accrued.

The Defendant is bonded by the state of Tennessee and the Plaintiff is

claiming its damages toward the Defendant’s bond. There is $250,000 dollars

in damages. This is for the recovery of the Plaintiff’s property and for the

repairs of the property due to the vandalism of the property by the eviction

officers.

In January 2012, Kail filed a motion to dismiss the lawsuit filed in Shelby County based on

improper venue. Instead of dismissing the case, the Shelby County Chancery Court

transferred it to the Crockett County Circuit Court (“trial court”).

In April 2012, Kail filed a second motion to dismiss. This motion was based on the premise

that Thompson was claiming in her lawsuit that Kail committed a negligent act or omission

in the course of his duties as the circuit court clerk and asserted that Thompson’s complaint

failed to state a claim upon which relief could be granted. Specifically, the motion asserted

that Thompson’s complaint failed to allege that Thompson asked Kail to send the unrelated

Case No. 3208 file to the Court of Appeals to assist the appellate court in its consideration

of the Case No. 3209 appeal, that the complaint acknowledged that the subject case file was

sent and claimed only that it was not sent in a timely fashion, and that the complaint did not

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assert any facts showing that Kim’s alleged failure to timely send the case file caused the

damages Thompson claimed in the Case No. 3209 appeal.

Shortly thereafter, the Honorable J. Weber McCraw was designated by the Tennessee

Supreme Court to hear the case. Judge McCraw set a hearing on Kail’s motion to dismiss.

Thompson filed no response to Kim’s second motion to dismiss. Instead, after the hearing

was set on the motion to dismiss, Thompson filed a motion asking the Crockett County

Circuit Court to transfer the case to the Crockett County Chancery Court.

In August 2012, the Crockett County Circuit Court held a hearing on Kail’s motion to

dismiss. The appellate record does not contain either a transcript or statement of the

evidence regarding what took place at this hearing. After the hearing, the trial court entered

an order stating that Thompson did not file a response to Kail’s motion to dismiss, that

Thompson received notice of the trial court’s scheduled hearing on the motion, and that the

hearing was held. The order then states that, “[b]ased on the Court’s file and the arguments

of the parties,” the trial court had concluded that Kail’s motion to dismiss was “well-taken

and should be granted.” The order granted the motion and dismissed Thompson’s complaint

with prejudice.

Shortly thereafter, Thompson filed a motion to reconsider, arguing that she had asked the

Crockett County Circuit Court to transfer the case to the Crockett County Chancery Court,

that she never intended for the case to be heard by the Crockett County Circuit Court, and

again asking the Crockett County Circuit Court to transfer the case to the Crockett County

Chancery Court. Kail filed a response to Thompson’s motion to reconsider, pointing out that

the Crockett County Circuit Court was the proper court to adjudicate a negligence claim

against a government official pursuant to Tennessee Code Annotated § 29-20-307. See

Tenn. Code Ann. § 29-20-307 (circuit courts have exclusive original jurisdiction over actions

brought under Tennessee Governmental Tort Liability Act).

In March 2013, the trial court held a hearing on Thompson’s motion to reconsider. Again,

the appellate record does not include either a transcript or a statement of the evidence for this

hearing. After the hearing, the trial court entered an order noting that, even though

Thompson did not appear at the hearing on Kail’s motion to dismiss, Thompson did not

assert in her motion for reconsideration that she did not receive notice of the hearing on the

motion to dismiss. The order went on to hold that Thompson presented “no compelling

reason for reconsideration and makes no argument regarding the factors under Tennessee

Rule of Civil Procedure 60.” Accordingly, the trial court denied Thompson’s motion for

reconsideration. Thompson now appeals.

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I SSUES ON A PPEAL AND S TANDARD OF R EVIEW

Thompson raises the following issue on appeal:

Whether Crockett County Circuit erred in holding that the motion to dismiss

was proper according to Rule 12.02(6). Which states: when considering a

motion to dismiss the courts[] must construe the Plaintiff’s complaint liberally,

presuming all factual allegations to be true and giving the plaintiff the benefit

of all reasonable inferences. Holding that courts must construe the complaint

liberally in favor of the plaintiff by giving the plaintiff the benefit of all

inferences that can be drawn from the pleaded facts. A trial court should grant

a motion to dismiss[] only when it appears that the plaintiff can prove no set

of facts in support of the claim that would entitle plaintiff to relief. The

plaintiff has proven to the court with evidence facts [sic] that the

Defendant/appellee Kim Kail violated her rights to a fair appeal to the court

of appeals By violating Rule 1.07 Rule 24 (b) (c) (d) Rule 4.06, rule 4.08[.]

We interpret this as stating two issues, namely, whether the trial court erred in granting Kail’s

motion to dismiss, and whether Thompson proved facts demonstrating that Kail “violated her

rights to a fair appeal . . . [b]y violating Rule 1.07, Rule 24(b) (c) (d)[,] Rule 4.06, rule

4.08.” 3

As to the motion to dismiss for failure to state a claim, courts “ ‘must construe the complaint

liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of

all reasonable inferences.’ ” Webb v. Nashville Area Habitat for Humanity, Inc., 346

S.W.3d 422, 426 (Tenn. 2011). “A trial court should grant a motion to dismiss ‘only when

it appears that the plaintiff can prove no set of facts in support of the claim that would entitle

the plaintiff to relief.’ ” Id. (quoting Crews v. Buckman Lab Int’l, Inc., 78 S.W.3d 853, 857

(Tenn. 2002)). We review the trial court’s legal conclusion on the adequacy of the complaint

de novo with no presumption that the trial court’s decision was correct. Webb, 346 S.W.3d

at 429.

A NALYSIS

We address Thompson’s second issue at the outset. After reviewing Thompson’s brief, we

must reluctantly conclude that we simply do not understand the issue Thompson seeks to

raise. Thompson’s brief does not state the source of the rules she cites and the argument

3

Thompson raises no issue on appeal regarding the trial court’s denial of her motion to reconsider.

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section of her brief offers no intelligible explanation on what she means to argue. In light

of this, we must respectfully decline to address this issue on appeal. See Bean v. Bean, 40

S.W.3d 52, 55-56 (Tenn. Ct. App. 2000) (“Courts have routinely held that the failure to make

appropriate references to the record and to cite relevant authority in the argument section of

the brief as required by Rule 27(a)(7) constitutes a waiver of the issue. Moreover, an issue

is waived where it is simply raised without any argument regarding its merits.”). Therefore,

we proceed to consider Thompson’s argument that the trial court erred in granting Kail’s

motion to dismiss for failure to state a claim.

A motion to dismiss a complaint for failure to state a claim filed pursuant to Tennessee Rule

of Civil Procedure 12.02(6) “ ‘admits the truth of all of the relevant and material allegations

contained in the complaint, but it asserts that the allegations fail to establish a cause of

action.’ ” Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850, 854 (Tenn. 2010) (quoting

Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 516 (Tenn. 2005); Leach

v. Taylor, 124 S.W.3d 87, 90 (Tenn. 2004)). Therefore, in reviewing the trial court’s

decision, we accept as true all factual allegations in the complaint and give Thompson the

benefit of all reasonable inferences. Brown, 328 S.W.3d at 854-55; see Trau-Med of Am.,

Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002) (“In reviewing a motion to

dismiss, the appellate court must construe the complaint liberally, presuming all factual

allegations to be true and giving the plaintiff the benefit of all reasonable inferences.”).

On appeal, we have carefully considered the arguments Thompson makes in her appellate

brief and those made in her oral argument before this Court. After such review, we must

respectfully conclude that the trial court did not err in granting the motion to dismiss.

On appeal, we interpret Thompson’s complaint as alleging negligence against a government

official in an act or omission in the course of the government official’s employment. The

complaint contains no allegation that Thompson asked Kail to send the case file from Case

No. 3208 to the Court of Appeals for purposes of Thompson’s appeal in Case No. 3209.

Moreover, Thompson’s complaint alleges no facts showing that Kail’s purported failure to

timely send the case file in Case No. 3208 affected the result in Thompson’s appeal in

unrelated Case No. 3209. Sturgis v. Thompson, 415 S.W.3d at 846-47 (affirming trial

court’s dismissal of Thompson’s appeal pursuant to Tenn. Code Ann. § 27-5-103 for failure

to file cost bond, recites that Thompson relied on pauper’s oath after trial court determined

she was not indigent). Likewise, Thompson’s complaint alleges no facts showing that Kail’s

alleged negligence caused the claimed $250,000 in damages “for the recovery of

[Thompson’s] property and for the repairs of the property due to the vandalism of the

property by the eviction officers.” See Kilpatrick v. Bryant, 868 S.W.2d 594, 599 (Tenn.

1993) (“Even when it is shown that the defendant breached a duty of care owed to the

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plaintiff, the plaintiff must still establish the requisite causal connection between the

defendant’s conduct and the plaintiff’s injury.”)

Accordingly, we find no error in the trial court’s grant of Kail’s motion to dismiss for failure

to state a claim, and so affirm the dismissal. This holding pretermits all other issues raised

on appeal.

C ONCLUSION

The judgment of the trial court is affirmed. Costs on appeal are assessed against

Plaintiff/Appellant Donna F. Thompson for which execution may issue if necessary.

___________________________

HOLLY M. KIRBY, JUDGE

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