Tom Watson v. Rosemarie Ralston-Good

05/30/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 1, 2017

TOM WATSON v. ROSEMARIE RALSTON-GOOD ET AL.1

Appeal from the Circuit Court for Hamilton County

No. 16C118 W. Neil Thomas, III, Judge

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No. E2016-01505-COA-R3-CV

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The plaintiff business owner, who provided carpet cleaning services, filed an action in the

Hamilton County General Sessions Court (“general sessions court”) against a customer,

alleging that the customer had failed to compensate him for services rendered. The

customer subsequently filed a counterclaim against the business owner, alleging that he

had ruined an oriental rug in her home and sprayed chemicals on her furniture. The

general sessions court entered a judgment in favor of the customer. The business owner

appealed to the Hamilton County Circuit Court (“trial court”). Following a de novo trial,

the trial court also found in favor of the customer, determining that the business owner

had damaged the customer’s carpet. The trial court awarded damages to the customer in

the amount of $500.00. Discerning no reversible error, we affirm.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which RICHARD H.

DINKINS, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Tom Watson, East Ridge, Tennessee, Pro Se.

Rosemarie Ralston-Good, Chattanooga, Tennessee, Pro Se.

John Ralston-Good, Chattanooga, Tennessee, Pro Se.

1

As addressed more thoroughly in a subsequent section of this Opinion, the trial court inverted

the order of the parties in its final judgment. We have therefore modified the style of the case to

reflect the proper status of the parties.

OPINION

I. Factual and Procedural Background

On August 31, 2015, Tom Watson, owner of a carpet cleaning franchise named

Southern Empire Chem-Dry, filed an action against Rosemarie Ralston-Good in the

general sessions court, alleging that she had failed to compensate him for carpet cleaning

services rendered. Ms. Ralston-Good subsequently filed a counterclaim in the action

against Mr. Watson, alleging that he had damaged an oriental rug and sprayed chemicals

on her furniture. 2 The general sessions court adjudicated both the original claim and

counterclaim on December 16, 2015. The general sessions court ruled in favor of Ms.

Ralston-Good, dismissing Mr. Watson’s claim and awarding Ms. Ralston-Good damages

in the amount of $347.80. Mr. Watson appealed to the trial court. On June 23, 2016, Ms.

Ralston-Good filed a motion with the trial court to add John Ralston-Good as a second

defendant and counter-plaintiff due to Ms. Ralston-Good’s daily medical appointments.

The trial court granted Ms. Ralston-Good’s motion.

The trial court conducted a de novo trial on the merits on July 12, 2016. The

record contains no transcript or statement of the evidence reflecting the proceedings of

July 12, 2016. On July 13, 2016, the trial court entered a judgment, finding that the

“carpet cleaning by [Mr. Watson] who was retained by [Ms. Ralston-Good] resulted in

some damage to the carpet” and awarding to Ms. Ralston-Good damages in the amount

of $500.00. In its judgment, however, the trial court misstated the procedural history of

the case, referencing the “appeal of Rosemarie Ralston-Good from a decision of General

Sessions Court in her favor.” The trial court stated that a “companion case in General

Sessions Court” resulted in a decision in favor of Ms. Ralston-Good “and no appeal was

taken.” The trial court also inverted the parties’ names in the style of the case on the

written judgment. Mr. Watson timely appealed to this Court while Ms. Ralston-Good did

not institute an appeal. Mr. Watson subsequently filed a notice with the trial court that he

did not intend to file a transcript or statement of the evidence. See Tenn. R. App. P.

24(d).

II. Issues Presented

Mr. Watson essentially presents two issues for our review, which we have restated

as follows:

1) Whether the trial court committed reversible error by issuing a

judgment that misstated the facts of the case.

2

Ms. Ralston-Good’s filing was labeled as a counterclaim. Both the original complaint and the

counterclaim were filed incorporating the same general sessions court docket number, No. 15 GS

8866.

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2) Whether the trial court erred by failing to comply with due process

requirements and the Tennessee Rules of Civil Procedure.

III. Standard of Review

Regarding de novo appeals to circuit court from general sessions court, this Court

previously has explained:

Tenn. Code Ann. § 16-15-729 (Supp. 2007) governs appeals from

general sessions court to circuit court, and requires a de novo review by the

circuit court. As our Supreme court held in Ware v. Meharry Medical

College, 898 S.W.2d 181 (Tenn. 1995):

De novo appeals from the general sessions court differ from

other types of appellate proceedings. The circuit court does

not review the general sessions court’s decision. Rather, it

provides the parties an entirely new trial as if no other trial

had occurred and as if the case had originated in the circuit

court.

Id. at 184 (citations omitted).

Consequently, this Court reviews the decision of the circuit court de

novo upon the record with a presumption of correctness as to the trial

court’s findings of facts. We must affirm those findings unless the

evidence preponderates to the contrary. Tenn. R. App. P. 13(d); Union

Carbide v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

Best Signs, Inc. v. Bobby King, 358 S.W.3d 226, 229-30 (Tenn. Ct. App. 2009) perm.

app. denied (Tenn. Aug. 17, 2009) (additional citations omitted).

We review questions of law, including those of statutory construction, de novo

with no presumption of correctness. See Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.

2000) (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In

re Estate of Haskins, 224 S.W.3d 675, 678 (Tenn. Ct. App. 2006). Questions of

construction involving the Tennessee Rules of Civil Procedure are likewise reviewed de

novo with no presumption of correctness. See Green v. Moore, 101 S.W.3d 415, 418

(Tenn. 2003). 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 Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

Regarding pro se litigants, this Court has explained:

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Parties who decide to represent themselves are entitled to fair and

equal treatment by the courts. The courts should take into account that

many pro se litigants have no legal training and little familiarity with the

judicial system. 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.

The courts give pro se litigants who are untrained in the law a certain

amount of leeway in drafting their pleadings and briefs. Accordingly, we

measure the papers prepared by pro se litigants using standards that are less

stringent than those applied to papers prepared by lawyers.

Pro se litigants should not be permitted to shift the burden of the

litigation to the courts or to their adversaries. They are, however, entitled

to at least the same liberality of construction of their pleadings that Tenn.

R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the

courts cannot create claims or defenses for pro se litigants where none exist,

they should give effect to the substance, rather than the form or

terminology, of a pro se litigant’s papers.

Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (internal citations

omitted).

IV. Deficiencies in Mr. Watson’s Brief

As a threshold matter, we recognize that there are numerous deficiencies with Mr.

Watson’s appellate brief. His principal and reply briefs fail to meet the requirements

provided in Tennessee Rule of Appellate Procedure 27, which states 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;

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(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 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.

We recognize that Mr. Watson is a pro se litigant and respect his decision to

proceed self-represented. Mr. Watson’s appellate briefs, however, contain numerous

deficiencies with regard to the above-listed requirements. Mr. Watson’s principal brief

completely lacks a table of contents, table of authorities, statement of the case, and

statement of facts. See Tenn. R. App. P. 27(a)(1)-(2),(5)-(6). Mr. Watson’s argument

section included in his principal brief contains no references to the record before us. See

Tenn. R. App. P. 27(a)(7)(A). Mr. Watson referred only to exhibits attached to his

appellate brief that were not supported by the appellate record.3 Furthermore, Mr.

Watson provides no authority to support the issues he raises for appeal in the argument

section of his principal brief. In addition, Mr. Watson’s reply brief consists of an

affidavit by Mr. Watson again restating facts that are not supported by the record.

3

Mr. Watson’s reliance on external facts not supported by the record will be addressed in a

subsequent section of this Opinion.

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In the case at bar, although Mr. Watson’s brief fails to fully satisfy the

requirements of Tennessee Rule of Appellate Procedure 27, we determine that this is an

appropriate case in which to exercise our discretion to waive the briefing requirements in

order to adjudicate only those issues specifically identified by Mr. Watson as issues

presented for review in his principal brief. See Tenn. R. App. P. 2; Chiozza v. Chiozza,

315 S.W.3d 482, 487-489 (Tenn. Ct. App. 2009) (“[T]here are times when this Court, in

the discretion afforded it under Tenn. R. App. P. 2, may waive the briefing requirements

to adjudicate the issues on their merits.”).

V. Facts Not Supported by the Appellate Record

We note at the outset that the record before us is limited. In his principal brief,

Mr. Watson presents several facts that are not supported by the record provided. On

appeal, he has attached exhibits to his brief, including a receipt and a cancelled check that

were not contained in the appellate record. Because these documents are not part of the

appellate record and the record contains no transcript or statement of the evidence, we

have no means to determine whether the documents attached to Mr. Watson’s brief were

presented in the trial court. Mr. Watson is not permitted to present additional evidence to

this Court that was not presented in the trial court. See Dorrier v. Dark, 537 S.W.2d 888,

890 (Tenn. 1976) (“This is a court of appeals and errors, and we are limited in authority

to the adjudication of issues that are presented and decided in the trial courts[.]”).

As this Court has explained:

[I]t is the appellant’s responsibility to assure that the record is accurate and

adequate to allow the Court to review and dispose of the issues. Flanagan

v. Flanagan, 656 S.W.2d 1, 3 (Tenn. Ct. App. 1983). It is well-settled in

the law of appellate practice that attachments to briefs as evidentiary

material are not part of the appellate record and cannot be considered by the

Court. Richmond v. Richmond, 690 S.W.2d 534, 535 (Tenn. Ct. App.

1985); Patterson v. Hunt, 682 S.W.2d 508, 517-18 (Tenn. Ct. App. 1984);

McKee v. McKee, 2000 WL 964774 (Tenn. Ct. App. 2000).

Kries v. Kries, No. E2004-00132-COA-R3-CV, 2004 WL 2709207, at *2 (Tenn. Ct. App.

Nov. 29, 2004). Therefore, we cannot consider the exhibits to or the facts included in

Mr. Watson’s principal and reply briefs that are not supported by the record before us.

VI. Notice

In support of Mr. Watson’s contention that the trial court failed to adhere to “all

mandatory rules of Tennessee Civil Procedure and due process notice,” he argues that the

record does not reflect that he was provided proper notice of Ms. Ralston-Good’s

counterclaim against him. In his reply brief, Mr. Watson states that the record “shows

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that there were no pleadings filed by Rosemarie Ralston-Good that would provide [Mr.

Watson] notice . . . of counter suit being filed against him.” Upon a thorough review of

the record, we disagree.

As this Court has explained, the “Fourteenth Amendment to the United States

Constitution and article I, section 8 of the Tennessee Constitution are the foundations for

procedural due process claims” and “provide the same protection.” Kelley v. State, Dep’t

of Children’s Servs., Child Protective Servs., No. M2006-02631-COA-R3-CV, 2008 WL

933490, at *4 (Tenn. Ct. App. Apr. 3, 2008) (citing Riggs v. Burson, 941 S.W.2d 44, 51

(Tenn. 1997)). As this Court has elucidated regarding service of process:

“[P]roper service of process is an essential step in a proceeding.”

Watson v. Garza, 316 S.W.3d 589, 593 (Tenn. Ct. App. 2008). Before a

court may deprive an individual of an interest in life, liberty, or property,

due process guarantees that individual an opportunity to be heard. U.S.

Const. amend. XIV, § 1; Tenn. Const. art. I, § 8; Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 314 (1950). “This right to be heard has

little reality or worth unless one is informed that the matter is pending and

can choose for himself whether to appear or default, acquiesce or contest.”

Mullane, 339 U.S. at 314.

Personal service of process always meets the requirements of due

process. Id. at 313.

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Service of process must strictly comply with Rule 4 of the Tennessee

Rules of Civil Procedure. Hall v. Haynes, 319 S.W.3d 564, 571 (Tenn.

2010); Watson, 316 S.W.3d at 593. Rule 4.04 specifies two methods of

personal service for individuals located within Tennessee. Tenn. R. Civ. P.

4.04(1), (10). A copy of the summons and complaint may be delivered

personally to the defendant, or a copy may be mailed to the defendant by

registered return receipt or certified return receipt mail. Id. Rule 4.08

allows constructive service of process when permitted by statute. Id. 4.08.

In re Beckwith Church of Christ, No. M2015-00085-COA-R3-CV, 2016 WL 5385853, at

*3 (Tenn. Ct. App. Sept. 23, 2016), perm. app. denied (Tenn. Jan. 19, 2017) (emphasis

added).

The record before us includes a copy of the counterclaim filed by Ms. Ralston-

Good on November 2, 2015. The face of the counterclaim reflects that it was served

personally upon Mr. Watson on November 5, 2015. A trial was conducted regarding

both the original complaint and counterclaim by the general sessions court on December

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16, 2015, more than thirty days after Mr. Watson was personally served with the

counterclaim. Mr. Watson appealed the ruling of the general sessions court, and a de

novo trial was conducted before the trial court on July 12, 2016.

Regarding de novo appeals from general sessions court to circuit court, the

Tennessee Supreme Court has held:

It is the opinion of this Court that the Tennessee Rules of Civil

Procedure are applicable, insofar as pertinent, to cases appealed to the

circuit court from the general sessions court, but that the Rules do not

require the filing of written pleadings, issuance of new process, or any other

steps which have been completed prior to the appealing of the case to the

circuit court.

Vinson v. Mills, 530 S.W.2d 761, 765 (Tenn. 1975); see also Brown v. Roland, 357

S.W.3d 614, 618 (Tenn. 2012). As such, Ms. Ralston-Good was not required to reissue

process or serve Mr. Watson with additional pleadings prior to the de novo trial.

Inasmuch as the record reflects that Mr. Watson was provided with sufficient notice of

the counterclaim filed against him, we determine this argument to be without merit.

VII. Right to Present Evidence

Additionally, Mr. Watson argues that he was not permitted to present evidence at

the de novo trial in circuit court. With the inadequate record before us, however, we are

unable to properly review this issue. See Chiozza v. Chiozza, 315 S.W.3d 482, 489

(Tenn. Ct. App 2009) (“[I]n order for this Court to properly review the trial court’s

actions, the record must be in a proper posture to provide us a meaningful review. This

Court’s review is limited to the appellate record and it is incumbent upon the appellant to

provide a record that is adequate.”) (citing Jennings v. Sewell-Allen Piggly Wiggly, 173

S.W.3d 710 (Tenn. 2005)).

Without a transcript or statement of the evidence reflecting the proceeding

conducted on July 12, 2016, we cannot ascertain whether Mr. Watson was prevented

from presenting evidence at trial. The record is simply insufficient to enable us to review

this issue. See, e.g., State v. Grissom, No. M2006-00147-CCA-R3-CD, 2007 WL

1073985, at *2 (Tenn. Crim. App. Apr. 11, 2007) (determining that the appellate court

was unable to address the defendant’s issues on appeal without a transcript or statement

of the evidence reflecting the trial proceedings). Inasmuch as Mr. Watson has failed to

provide this Court with an adequate record to review this issue, no relief can be granted.

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VIII. Misstatement of Procedural History

Mr. Watson further contends that the trial court’s ruling should be reversed due to

its purported misstatement of the facts in the judgment. However, Mr. Watson does not

explain how this misstatement of the facts constitutes reversible error.

In its judgment, the trial court summarized the procedural history regarding the

case and found as follows: “This matter was heard before the undersigned on July 12,

2016, and after hearing proof, finds that carpet cleaning by [Mr. Watson] who was

retained by the Plaintiff resulted in some damage to the carpet.” The trial court

accordingly awarded Ms. Ralston-Good damages in the amount of $500.00.

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

assume that the trial court’s findings of fact as set forth in the trial court’s judgment,

entered on July 13, 2016, were supported by the evidence presented at trial. See Reid v.

Reid, 388 S.W.3d 292, 295 (Tenn. Ct. App. 2012) (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.”); see

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

(concluding that there is a “conclusive presumption that there was sufficient evidence

before the trial court to support its judgment” if no transcript or statement of the evidence

is submitted). Therefore, we must assume that the evidence presented at trial supported

the trial court’s finding that Mr. Watson had damaged Ms. Ralston-Good’s carpet while

cleaning it, resulting in damages to Ms. Ralston-Good in the total amount of $500.00.

Our review of the record indicates that the trial court in its judgment misstated the

procedural history of the case and inverted the parties’ names in the style of the case.

The trial court stated that the matter was before the court on appeal by Ms. Ralston-Good

and that Mr. Watson had not appealed the general sessions court’s order.4 However, due

to the presumption that the evidence at trial supported the trial court’s findings of fact and

the limited record before us, we are unable to determine that this apparent error in the

trial court’s judgment was anything other than a typographical error not affecting the trial

court’s determination of the relevant factual issues or the disposition of this case. See,

e.g, In re Caleb L.C., 362 S.W.3d 581, 598 (Tenn. Ct. App. 2011) (finding that

4

We note that if a defendant files a counterclaim in the same action, “an appeal [from the

general sessions court] by either party would take the entire case to the Circuit Court where the

pleadings and issues would be the same as those in the General Sessions Court unless changed

by amendment.” Hendersonville Wrecker Serv. v. Grubbs, No. 86-214-II, 1986 WL 13503, at *4

(Tenn. Ct. App. Dec. 3, 1986).

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typographical errors noted by the appellant in the trial court’s detailed judgment did not

affect the overall clarity of the judgment or this Court’s analysis). As this Court has

elucidated:

It was the appellant’s responsibility to furnish the Court of Appeals with a

record reflecting the alleged error. . . . In the absence of a record reflecting

error, we must assume that the trial court acted properly. Lyon v. Lyon, 765

S.W.2d 759, 763 (Tenn. [Ct.] App. 1988).

Phung v. Case, No. 03A01-9811-CV-00388, 1999 WL 544650, at *4 (Tenn. Ct. App.

July 28, 1999). Because Mr. Watson has failed to provide this Court with an adequate

record to review this issue, no relief can be granted. See Chiozza, 315 S.W.3d at 489.

IX. Conclusion

For the foregoing reasons, we conclude that the trial court’s judgment should be

affirmed in all respects. This case is remanded to the trial court for enforcement of the

court’s judgment and collection of costs below. Costs on appeal are taxed to the

appellant, Tom Watson.

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THOMAS R. FRIERSON, II, JUDGE

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