Ted H. Lowe, III v. Joseph M. Brown

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 2, 2014 Session

TED H. LOWE, III1 ET AL. v. JOSEPH M. BROWN ET AL.

Appeal from the Circuit Court for Knox County

No. 1-15-11 Dale C. Workman, Judge

No. E2013-00421-COA-R3-CV-FILED-NOVEMBER 10, 2014

This action arose over the unfulfilled terms of a condominium lease entered into between the

defendant lessee and the lessor, whose estate initiated this action following the death of the

lessor. A judgment in the amount of $16,120.36 was originally entered in favor of the estate

by the Knox County General Sessions Court. The lessee appealed to the Knox County

Circuit Court for a de novo proceeding, and the decedent’s personal representatives were

substituted as parties for the estate. Following a non-jury trial, the circuit court entered a

judgment in favor of the personal representatives in the amount of $15,882.28. The lessee

appeals. Discerning no reversible error, we affirm.

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

Affirmed; Case Remanded

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.

S USANO, J R., C.J. and D. M ICHAEL S WINEY, J., joined.

Joseph M. Brown, Knoxville, Tennessee, Pro Se.

Rufus W. Beamer, Jr., Knoxville, Tennessee, for the appellees, Ted H. Lowe, III, Mary Lowe

Graham, and Angela D. Lowe, in their capacities as co-personal representatives of the Estate

of Ted H. Lowe, Jr.

1

There is some confusion throughout pleadings and orders in the record of this action as to whether

the first-named appellee is Ted H. Lowe, II, or Ted H. Lowe, III. Because the trial court’s order substituting

Mr. Lowe and the other personal representatives as parties and the parties’ address information submitted

to this Court both name Ted H. Lowe, III, we have styled this opinion accordingly.

OPINION

I. Factual and Procedural Background

The defendant, Joseph M. Brown, and his wife, Jewel M. Brown, entered into a

written lease agreement with Ted H. Lowe, Jr. (“the Decedent”) on May 9, 2009. According

to the terms of the lease agreement, the Browns were to pay $1,200.00 per month in

exchange for rental of a condominium unit in Knoxville. The agreement set a fixed term for

the lease of approximately fourteen months, beginning May 9, 2009, and ending July 31,

2010. The lease also provided for the possibility of extension or renewal.

The Decedent died suddenly in December 2009 as the result of an automobile

accident. It is undisputed that the Browns paid the Decedent $1,200.00 monthly rent through

November 2009. It is also undisputed that the Browns did not pay rent in December 2009

or thereafter. In his pleadings and on appeal, Mr. Brown asserts that he and Ms. Brown

failed to pay rent because they were attempting unsuccessfully to identify and contact the

attorney for the Decedent’s estate (“the Estate”).

On May 11, 2010, attorney Frank Watkins, acting on behalf of the Estate, filed a

detainer warrant action and attempted to serve the Browns. Service of process was

unsuccessful, and process was reissued on June 29, 2010, with service by posting and

mailing. See Tenn. Code Ann. § 29-18-115(e) (2012) (providing for service of process of

a detainer warrant through posting on the door of the premises combined with mailing via

United States Postal Service first class mail in the event that three documented attempts at

personal service of process are unsuccessful). The Estate obtained a default judgment in the

Knox County General Sessions Court for possession of the condominium on August 10,

2010. Also on August 10, 2010, process was reissued with notice of a damages hearing set

for September 10, 2010. Personal service of process to the Browns was accomplished on

August 27, 2010, although the Browns refused to sign for service.

Following a non-jury trial conducted on October 19, 2010, the General Sessions Court

awarded a judgment in favor of the Estate in the amount of $16,120.36 and authorized a writ

of possession in favor of the Estate for the condominium. Mr. Brown filed a notice of appeal

to the Knox County Circuit Court on November 3, 2010. He and Ms. Brown, acting through

attorney J. Myers Morton, subsequently filed a “Petition for Certiorari in Lieu of Appeal,”

on January 14, 2011, which the Circuit Court (“trial court”) granted on January 19, 2011.

On March 6, 2012, the trial court entered an order setting the action for trial and

substituting the personal representatives of the Estate, Ted H. Lowe, III, Mary Lowe Graham,

and Angela D. Lowe (“Personal Representatives”), as the proper plaintiffs. Through an

-2-

agreed order entered September 27, 2012, the trial court, inter alia, substituted attorney Glen

B. Rutherford as the Browns’ counsel.

Following a non-jury trial conducted on January 9, 2013, the trial court entered a

judgment in the amount of $15,882.28 in favor of the Personal Representatives. Mr. Brown

timely appealed.2

II. Issues Presented

Relevant to his appeal of the trial court’s judgment in favor of the Personal

Representatives, Mr. Brown presents two issues, which we restate as follows:

1. Whether the trial court erred by awarding a judgment to the Personal

Representatives in the amount of $15,882.28.

2. Whether Mr. Brown received such ineffective assistance of counsel as to

warrant a new trial.

III. Standard of Review

We review a non-jury case de novo upon the record, with a presumption of correctness

as to the findings of fact unless the preponderance of the evidence is otherwise. See Tenn.

R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). We review questions

of law de novo with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint

v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)). The trial court’s determinations

regarding witness credibility are entitled to great weight on appeal and shall not be disturbed

absent clear and convincing evidence to the contrary. See Morrison v. Allen, 338 S.W.3d

417, 426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

We note that pleadings “prepared by pro se litigants untrained in the law should be

measured by less stringent standards than those applied to pleadings prepared by lawyers.”

Stewart v. Schofield, 368 S.W.3d 457, 463 (Tenn. 2012) (citing Carter v. Bell, 279 S.W.3d

560, 568 (Tenn. 2009); Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003);

Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003)). Parties proceeding without

2

As this Court noted in an Order entered November 6, 2013, the notice of appeal was signed only

by Mr. Brown, who is not an attorney licensed to practice in Tennessee. Consequently, Ms. Brown is not

a party to this appeal. See Tenn. R. Civ. P. 11.01 (“Every pleading, written motion, and other paper shall be

signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented

by an attorney, shall be signed by the party.”).

-3-

benefit of counsel are “entitled to fair and equal treatment by the courts,” but we “must not

excuse pro se litigants from complying with the same substantive and procedural rules that

represented parties are expected to observe.” Hessmer v. Hessmer, 138 S.W.3d 901, 903

(Tenn. Ct. App. 2003).

IV. Judgment in Favor of Personal Representatives

As a threshold matter, we note that although the Personal Representatives do not

specifically raise the issue of whether Mr. Brown’s appeal should be dismissed for this

reason, they do assert in their responsive brief that Mr. Brown’s principal brief contains “no

colorable compliance with” Tennessee Rule of Appellate Procedure 27 and Tennessee Rule

of the Court of Appeals 6 regarding the required contents of appellate briefs3 so as to afford

3

Tennessee Rule of Appellate Procedure 27 provides 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;

(3) A jurisdictional statement in cases appealed to the Supreme Court

directly from the trial court indicating briefly the jurisdictional grounds for

the appeal to the Supreme Court;

(4) A statement of the issues presented for review;

(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

(continued...)

-4-

the Personal Representatives an opportunity to respond substantively. Upon careful review,

we determine that Mr. Brown’s pro se brief does not appear to be so deficient as to warrant

dismissal based on either Tennessee Rule of Appellate Procedure 27 or Tennessee Rule of

the Court of Appeals 6.

Mr. Brown contends that the trial court erred by entering a judgment in favor of the

Personal Representatives in the amount of $15,882.28. He makes several factual assertions

in his brief on appeal, arguing particularly that (1) the trial court failed to adequately weigh

his early attempts to locate the Estate’s executor and (2) a witness testified falsely that the

Browns had taken appliances from the condominium. As the Personal Representatives note

in their brief on appeal, however, we are unable to review the trial court’s factual findings

because we have not been provided with a transcript of the proceedings or a statement of the

evidence. We must therefore assume that a preponderance of the evidence supported the trial

3

(...continued)

the record (which may be quoted verbatim) relied on; and

(B) for each issue, a concise statement of the applicable

standard of review (which may appear in the discussion of

the issue or under a separate heading placed before the

discussion of the issues);

(8) A short conclusion, stating the precise relief sought.

Tennessee Rule of the Court of Appeals 6 provides in pertinent part:

(a) Written argument in regard to each issue on appeal shall contain:

(1) A statement by the appellant of the alleged erroneous action of the trial

court which raises the issue and a statement by the appellee of any action

of the trial court which is relied upon to correct the alleged error, with

citation to the record where the erroneous or corrective action is recorded.

(2) A statement showing how such alleged error was seasonably called to

the attention of the trial judge with citation to that part of the record where

appellant’s challenge of the alleged error is recorded.

(3) A statement reciting wherein appellant was prejudiced by such alleged

error, with citations to the record showing where the resultant prejudice is

recorded.

(4) A statement of each determinative fact relied upon with citation to the

record where evidence of each such fact may be found.

-5-

court’s factual findings. See Brown v. Christian Bros. Univ., 428 S.W.3d 38, 48 (Tenn. Ct.

App. 2013) (“‘It is well settled that, in the absence of a transcript or statement of the

evidence, there is a conclusive presumption that there was sufficient evidence before the

Trial Court to support its judgment and this Court must therefore affirm the judgment.’”)

(quoting Outdoor Mgmt. LLC v. Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 2007)).

During the pendency of this appeal and prior to its being set for oral argument, the

Personal Representatives filed a motion to dismiss the appeal on the basis that Mr. Brown

had failed to timely comply with Tennessee Rule of Appellate Procedure 24. In an Order

entered November 6, 2013, this Court denied the motion to dismiss the appeal, stating in

pertinent part:

By order entered August 21, 2013, this Court gave the pro se appellant

up to and including October 15, 2013, within which to file either a transcript

or statement of the evidence for inclusion in the record. By notice dated

October 18, 2013, the trial court clerk advised that the appellant had failed to

file by the October 15, 2013 deadline either a transcript, statement of the

evidence, or notice that neither would be filed. However, on October 15,

2013, the appellant did file a document with the trial court clerk entitled “Brief

of Appellant.” On October 24, 2013, the appellant also filed a notice stating

that there would be no transcript of the evidence filed and that the appeal

would be “based on the statement of evidence.”

The Court construes the October 24, 2013 notice as a notice that neither

a transcript nor a statement of the evidence will be filed. See Tenn. R. App.

P. 24(d). The Court is inclined to accept the late-filed notice in order to

proceed with the merits of this appeal. See id. (requiring such notice to be

filed with the trial court clerk within 15 days after the filing of the notice of

appeal).

Accordingly, on the Court’s own motion, the appellant’s late-filed

notice pursuant to Rule 24(d) of the Rules of Appellate Procedure is accepted

as timely filed. The time for preparation and transmission of the record by the

trial court clerk shall run from the date of entry of this order.

Mr. Brown asserts that no transcript of the evidence was created because his counsel

relied on the Personal Representatives’ counsel to secure a court reporter, which the Personal

Representatives’ counsel failed to do. Assuming, arguendo, that Mr. Brown’s version of

events leading to the lack of a court reporter is true, those events can have no bearing on our

analysis of the trial court’s judgment. See Reid v. Reid, 388 S.W.3d 292, 295 (Tenn. Ct. App.

-6-

2012) (“‘The duty to see to it that the record on appeal contains a fair, accurate, and complete

account of what transpired with respect to the issues being raised on appeal falls squarely on

the shoulders of the parties themselves, not the courts.’”) (quoting Trusty v. Robinson, No.

M2000-01590-COA-R3-CV, 2001 WL 96043 at *1 (Tenn. Ct. App. Feb. 6, 2001)).

The record we have now before us consists only of the “technical record,” comprised

of the parties’ pleadings and trial court’s orders, and the exhibits admitted at trial. Included

in these exhibits is the Lease Agreement entered into on May 9, 2009, by the Browns and the

Decedent, demonstrating, inter alia, that the Browns had agreed to pay $1,200.00 monthly

in rent through July 31, 2010, with any rent installment paid more than five days after the due

date subject to a ten-percent late fee. The “Brief of Appellant” filed with the trial court on

October 15, 2013, does not constitute a statement of the evidence and was not filed in

accordance with Tennessee Rule of Appellate Procedure 24(c). See Reid, 388 S.W.3d at 295

(“‘A recitation of facts and argument in an appellate brief does not constitute evidence and

cannot be considered in lieu of a verbatim transcript or statement of the evidence and

proceedings.’”) (quoting In re M.R., No. M2007-02532-COA-R3-JV, 2008 WL 2331030 at

*3 (Tenn. Ct. App. June 3, 2008)).

In entering its Final Judgment, the trial court stated the following in pertinent part:

[T]he court heard the testimony of the parties and witnesses in open court, the

introduction of documents into evidence and the entire record of the cause.

From all of which the court finds the issues joined in favor of the plaintiffs and

against the defendants. The court from all of the proof finds and the plaintiffs

are entitled to judgment in the principal amount of $15,095.37 together with

pre-judgment interest in the amount of $786.91 up to and including January 9,

2013 for a total judgment of $15,882.28.

We stress that the trial court’s determinations regarding witness credibility are entitled to

great weight on appeal. See Morrison, 338 S.W.3d at 426; Jones, 92 S.W.3d at 838. Having

no transcript of the evidence or statement of the evidence before us, we are compelled to

assume that the trial court’s decision in favor of the Personal Representatives was supported

by the evidence presented at trial. See Reid, 388 S.W.3d at 295 (concluding that “[w]ithout

a complete record or sufficient statement of the evidence from which to determine whether

the trial court acted appropriately,” this Court was “compelled to assume that the Circuit

Court’s decision in favor of Landlord was supported by the evidence submitted at trial.”).

-7-

V. Ineffective Assistance of Counsel

Mr. Brown posits that he is entitled to a new trial because his counsel allegedly

represented him ineffectively. We note that having been provided no transcript or statement

of the evidence, we have no record before us demonstrating counsel’s representation of Mr.

Brown at trial. Moreover, any such record would be unavailing as to this issue. Mr. Brown

appears to confuse the theory of ineffective assistance of counsel available to criminal

petitioners seeking post-conviction relief with a theory available to civil litigants on appeal.

See Welch v. Bd. of Prof’l Responsibility, 193 S.W.3d 457, 465 (Tenn. 2006) (“While

ineffective assistance of counsel is a proper ground for granting relief in a criminal case,

there is no such constitutional guarantee to effective counsel in a civil case.”); see also In re

Grayson H., No. E2013-01881-COA-R3-PT, 2014 WL 1464265 at *13 (Tenn. Ct. App. Apr.

14, 2014) (noting that no theory of ineffective assistance of counsel has been established in

parental rights termination cases in Tennessee). This issue is without merit.

VI. Conclusion

For the reasons stated above, we affirm the judgment of the trial court. This case is

remanded to the trial court for enforcement of the judgment and collection of costs below.

Costs on appeal are taxed to the appellant, Joseph M. Brown.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

-8-