Jeffery G. Douglas v. State of Tennessee

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned On Briefs May 20, 2015

JEFFERY G. DOUGLAS v. STATE OF TENNESSEE, ET AL.

Direct Appeal from the Circuit Court for Madison County

No. C12278 Paul G. Summers, Judge

No. W2014-00831-COA-R3-CV – Filed July 14, 2015

The trial court granted motions to dismiss and for summary judgment in favor of

defendants. Plaintiff/Appellant appealed. Due to the deficiencies in Appellant‟s brief on

appeal, we conclude that Appellant waived consideration of any issues on appeal and

hereby dismiss the appeal.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Jeffery G. Douglas, Tiptonville, Tennessee, Pro Se.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor

General, and Heather C. Ross, Senior Counsel, Nashville, Tennessee, for the appellees,

State of Tennessee - Civil, Judge Donald H. Allen, District Attorney General James G.

Woodall, Assistant District Attorney General Shaun A. Brown, and Assistant Public

Defender Gregory D. Gookin.

Matthew R. Courtner, Jackson, Tennessee, for the appellee, Danielle Jones, Jackson

Police Department.

Timothy G. Wehner and J. Caleb Meriwether, Jackson, Tennessee, for the appellee, Lisa

Piercey, M.D.

MEMORANDUM OPINION1

I. Facts & Procedural History

Plaintiff/Appellant Jeffery G. Douglas was convicted of rape and sexual battery by

a Madison County jury. His conviction was affirmed by the Tennessee Court of Criminal

Appeals. See State v. Douglas, No. W2010-00986-CCA-R3-CD, 2011 WL 915052

(Tenn. Ct. Crim. App. Mar. 16, 2011), perm. app. denied (Tenn. May 25, 2011). After

the Tennessee Supreme Court declined to hear Appellant‟s criminal appeal, he filed the

underlying action against the State of Tennessee, Madison County Circuit Court Judge

Donald H. Allen, thirteen “Jane/John Doe” jurors, the District Attorney General, the

Assistant District Attorney General, the Public Defender (collectively, “State

defendants”), Danielle Jones, who was a Jackson Police Department investigator, the

victim, the victim‟s mother, a witness for the victim, and Dr. Lisa Piercey, who was also

a witness for the State.2 Appellant‟s complaint, although far from a model of clarity,

asserts that the defendants “having been guilty of the following wrongs, all which

proximately resulted in torts to Plaintiff: (1) In knowingly or negligently represented

malicious prosecution, (2) In knowingly or negligently failure to disclose the truth, (3)

Emotional Distress, (4) Psychological Injuries, (5) Intangible, (6) Loss of Society

Damages, (7) Actual Damages.” The complaint goes on to include words such as

“extortion,” “intentional or reckless infliction of emotional distress,” and “conspiracy.”

However, the complaint does not contain a single fact underlying Appellant‟s claims.

The case was removed to the United States District Court for the Western District

of Tennessee and was then remanded back to the Madison County Circuit Court on or

about September 5, 2013. On October 3, 2013, the State defendants filed a Motion to

Dismiss arguing, among other things, immunity, failure to state a claim upon which relief

may be granted, and expiration of the one-year statute of limitation. On October 8, 2013,

Danielle Jones filed a motion for summary judgment and asserted, among other things,

failure to assert “facts that articulate a claim for relief,” expiration of the one-year statute

of limitations, qualified immunity, and failure to state a claim for relief. On October 11,

2013, Dr. Piercey filed a Motion to Dismiss and/or for Summary Judgment. On October

17, 2013, Appellant filed a two page “Counter-Claim Response to All Defendants Motion

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Rule 10 of the Court of Appeals of Tennessee provides:

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.

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The record indicates that the jurors, the victim, the victim‟s mother, and one of the victim‟s witnesses in

the criminal proceeding were never served with process.

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to Dismiss and/or for Summary Judgment Lisa Piercey‟s Motion Filed Oct. 11, 2013.”

Appellant‟s October 17, 2013 filing contained no facts and did not respond to the legal

arguments raised by the defendants.

On April 11, 2014, after numerous filings from Appellant, the trial court entered

an “Order Granting Motions for Summary Judgment and Dismissal.” The trial court

noted that Appellant failed to “offer sufficient factual allegations necessary to support his

claims.” The court also determined that “[t]he complaint articulates no cognizable action

for relief and, at most, provides legal elements or conclusory statements couched as

facts.” Nonetheless, the trial court analyzed the defenses raised by the defendants and

determined that the Appellant‟s complaint was filed outside the applicable statute of

limitation, that the complaint failed to establish essential elements and alleged non-

existent causes of action, and that the State defendants enjoy immunity from suit.

Appellant timely appealed.

II. Discussion

Our ability to review the merits of this appeal is substantially hindered by the state

of the brief submitted by Appellant. Briefs submitted to the Tennessee Court of Appeals

are governed by Rule 27 of the Tennessee Rules of Appellate Procedure, which provides:

(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

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the reasons why the contentions require appellate

relief, with citations to the authorities and appropriate

references to 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.

The brief submitted by Appellant fails to comply with these requirements. It does

not contain a table of contents, a table of authorities, a statement of the case, a statement

of facts with references to the record, or an argument section containing references to the

record or an applicable standard of review. On page thirteen of his seventeen-page brief,

Appellant admittedly raises the following five issues:

1. Whether, based on the separation of doctrine causes deliberate

indifference,

2. Whether, the Court erred in summary judgement [sic] and dismissal of

Petitioner’s claim,

3. Whether, the Court erred in declining to hold trail [sic] by jury upon

proper and timely request,

4. Whether, the Court in declining to promulgate a uniform rule assigning

to jury trial as of right, and

5. Whether, the Court would err by declining to apply the doctrine of Res

Ipsa Loquitur Walker v. Bradley County Government, 2014 WL

1493193.

(Emphasis in original.) While Appellant‟s brief includes a litany of case citations, his

brief, much like his original complaint in the trial court, fails to include a single factual

allegation upon which this Court can determine the underlying basis for his claims. In

fact, were it not for Appellees‟ briefs, we would not be able to determine any underlying

context for Appellant‟s lawsuit.

As this Court said in Clayton v. Herron:

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Rule 6 of the Rules of the Court of Appeals of Tennessee requires an

appellate brief to contain a written argument in regard to each issue on

appeal, with a statement of the alleged erroneous action of the trial court, as

well as a specific reference to the record where such action is recorded.

The Rule further provides,

No complaint of or reliance upon action by the trial court will

be considered on appeal unless the argument contains a

specific reference to the page or pages of the record where

such action is recorded. No assertion of fact will be

considered on appeal unless the argument contains a

reference to the page or pages of the record where evidence of

such fact is recorded.

Tenn. R. Ct. App. 6(b).

“„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.‟” Forbess v. Forbess, 370 S.W.3d 347, 355 (Tenn. Ct. App. 2011)

(quoting Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000)); see

also Tellico Village Property Owners Ass’n, Inc. v. Health Solutions, LLC,

No. E2012-00101-COA-R3-CV, 2013 WL 362815, at *3 (Tenn. Ct. App.

Jan. 30, 2013) (no perm. app. filed) (quoting Branum v. Akins, 978 S.W.2d

554, 557 n.2 (Tenn. Ct. App. 2001)) (“„Where a party makes no legal

argument and cites no authority in support of a position, such issue is

deemed to be waived and will not be considered on appeal.‟”) In addition,

“Appellants . . . must include in their . . . brief a statement of the issues they

desire to present to the court and an argument with respect to each of the

issues presented.” Craig v. Hodge, 382 S.W.3d 325, 334-335 (Tenn. 2012).

“[A]n issue may be deemed waived when it is argued in the brief but is not

designated as an issue in accordance with Tenn. R. App. P. 27(a)(4).” Id.

(citing ABN AMRO Mortg. Grp., Inc. v. S. Sec. Fed. Credit Union, 372

S.W.3d 121, 132 (Tenn. Ct. App. 2011); Childress v. Union Realty Co., 97

S.W.3d 573, 578 (Tenn. Ct. App. 2002)). “The requirement of a statement

of the issues raised on appeal is no mere technicality.” Owen v. Long Tire,

LLC, No. W2011-01227-COA-R3-CV, 2011 WL 6777014, at *4 (Tenn. Ct.

App. Dec. 22, 2011). The appellee is entitled to fair notice of the appellate

issues so as to prepare his or her response, and more importantly, “this

Court is not charged with the responsibility of scouring the appellate record

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for any reversible error the trial court may have committed.” Id. “It is not

the role of the courts, trial or appellate, to research or construct a litigant‟s

case or arguments for him or her, and where a party fails to develop an

argument in support of his or her contention or merely constructs a skeletal

argument, the issue is waived.” Sneed v. Bd. of Prof’l Responsibility of

Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2010).

Although we realize the “legal naivete” of a pro se litigant, “we must

not allow him an unfair advantage because he represents himself.” Frazier

v. Campbell, No. W2006-00031-COA-R3-CV, 2006 WL 2506706, at *3

(Tenn. Ct. App. Aug. 31, 2006) (citing Irvin v. City of Clarksville, 767

S.W.2d 649, 651-52 (Tenn. Ct. App. 1989)). “Pro se litigants who invoke

the complex and technical procedures of the courts assume a very heavy

burden.” Irvin, 767 S.W.2d at 652. They are entitled to fair and equal

treatment, but they must follow the same substantive and procedural

requirements as a represented party, and they may not shift the burden of

litigating their case to the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d

222, 227 (Tenn. Ct. App. 2000).

“[T]he Supreme Court has held that it will not find this Court in

error for not considering a case on its merits where the plaintiff did not

comply with the rules of this Court.” Bean, 40 S.W.3d at 54-55 (citing

Crowe v. Birmingham & N.W. Ry. Co., 156 Tenn. 349, 1 S.W.2d 781

(1928)). “[A]ppellate courts may properly decline to consider issues that

have not been raised and briefed in accordance with the applicable rules.”

Waters v. Farr, 291 S.W.3d 873, 919 (Tenn. 2009). “We have previously

held that a litigant‟s appeal should be dismissed where his brief does not

comply with the applicable rules, or where there is a complete failure to cite

to the record.” Commercial Bank, Inc. v. Summers, No. E2010-02170-

COA-R3-CV, 2011 WL 2673112, at *2 (Tenn. Ct. App. July 11, 2011).

Clayton v. Herron, No. M2014-01497-COA-R3-CV, 2015 WL 757240, at *2–3,

(Tenn. Ct. App. Feb. 20, 2015) (no perm. app. filed).

This case presents a similar scenario. While Appellant enumerated five issues on

appeal, his brief contains no coherent discussion of those issues, and he provides no

citations to the record to support the issues. After the various Appellees noted the

deficiencies in Appellant‟s brief, Appellant filed “Appellant‟s Additional Pleading to

Original Brief.” This “Additional Pleading” still does not assert any facts supporting his

claimed issues on appeal. Regardless, “[a] reply brief is a response to the arguments of

the appellee. It is not a vehicle for raising new issues.” Owens v. Owens, 241 S.W.3d

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478, 499 (Tenn. Ct. App. 2007) (citing Tenn. R. App. P. 27(c); Denver Area Meat

Cutters & Emp’rs Pension Plan v. Clayton, 209 S.W.3d 584, 594 (Tenn. Ct. App. 2006)).

“A reply brief is limited in scope to a rebuttal of the argument advanced in the appellee‟s

brief.” Clayton, 209 S.W.3d at 594. It would be fundamentally unfair to permit an

appellant to advance new arguments in the reply brief, as the appellee may not respond to

a reply brief. Id.

Because Appellant‟s brief wholly fails to comply with Rule 27‟s provisions

regarding the content of briefs, we decline to examine the merits of any issues on appeal.

Additionally, Tennessee Code Annotated section 27-1-122 allows this Court, sua sponte,

on determination that an appeal is frivolous, to “award just damages against the appellant,

which may include but need not be limited to, costs. . . .” Our review of the record and

Appellant‟s briefing leads us to conclude that this appeal is frivolous. We decline to

award damages against the Appellant; however, we designate it as frivolous for purposes

of Tennessee Code Annotated section 41-21-807(c).

III. Conclusion

For the forgoing reasons, the appeal is dismissed. Costs of this appeal are taxed to

the Appellant, Jeffery G. Douglas. Because Mr. Douglas is proceeding in forma pauperis

in this appeal, execution may issue for costs, if necessary.

_________________________________

BRANDON O. GIBSON, JUDGE

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