Tina Y. Vaughn v. Kimberly Dickens-Durham

10/04/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

September 13, 2018 Session

TINA Y. VAUGHN v. KIMBERLY DICKENS-DURHAM

Appeal from the Circuit Court for Shelby County

No. CT-000612-16 James F. Russell, Judge

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No. W2017-00716-COA-R3-CV

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Appellant, surviving child of Decedent, brought suit against Appellee, Decedent’s

granddaughter, for alleged violations of the Tennessee Adult Protection Act. Appellant

filed the lawsuit in her individual capacity, and the trial court dismissed the case, finding

that Appellant lacked standing. Discerning no error, we affirm.

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

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Tina Yvette Vaughn, Memphis, Tennessee, appellant, pro se.

Kimberly Dickens-Durham, Memphis, Tennessee, appellee, pro se.1

MEMORANDUM OPINION2

1

Appellee did not file a responsive brief and did not appear at oral argument before this Court.

2

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opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and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.

Appellant Tina Vaughn is Appellee Kimberly Dickens-Durham’s aunt. Estella

Vaughn (“Decendent”) is Appellant’s mother and Appellee’s grandmother. Decedent

died on October 30, 2014. Appellant’s brief contains numerous attachments, none of

which are part of the appellate record. Because our review is limited to the record on

appeal, we will not consider these attachments. Tenn. R. App. P. 13(d); i, 898 S.W.2d

177, 181 (Tenn. 1995).

In her brief, Appellant states that, in July 2013, Appellant “was unfortunately

separated from her Mother, prior to that time, [Appellant] had Power-of-Attorney of her

Mother and cared for her for 3 years.” The record does not contain a power of attorney.

Appellant’s brief further states that, after she was separated from Decedent, Appellee had

Decedent placed in a nursing home and fraudulently obtained “some power of attorney

supposedly signed by [Decedent].” A copy of the alleged power of attorney is not in the

record. After Decedent entered the nursing facility, Appellant states that Appellee kept

Decedent’s location from Appellant, causing Appellant emotional and physical distress.

Appellant commenced her lawsuit in the General Sessions Court of Shelby County

on December 17, 2015. Appellant averred the following causes of action against

Appellee: (1) “failure to protect elder;” (2) “failure to report abuse;” (3) “violation of the

TN Adult Protection Act;” (4) “exploitation;” (5) “coercion;” and (6) “undue influence.”

The general sessions court dismissed the lawsuit on February 1, 2016, and Appellant

appealed to the Shelby County Circuit Court (“trial court”). Appellant did not file a

complaint (amended or otherwise) in the trial court; rather, Appellant relied solely on her

general sessions’ pleadings. By order of March 3, 2017, the trial court dismissed

Appellant’s lawsuit, finding, sua sponte, that Appellant lacked standing.

The sole issue on appeal is whether the trial court erred in dismissing Ms.

Vaughn’s lawsuit in toto. This is a question of law, which we review with no

presumption of correctness concerning the trial court’s decision. Kelly v. Kelly, 445

S.W.3d 685, 692 (Tenn. 2014) (citing Armbrister v. Armbrister, 414 S.W.3d 685, 692

(Tenn. 2013)).

Before turning to the issue, we first note that, in her appellate brief, Ms. Vaughn

cites numerous facts not in the record and attaches documents that have not been made

part of the trial court record. “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.” In re M.R., No. M2007-02532-COA-R3-JV,

2008 WL 2331030, at *3 (Tenn. Ct. App. June 3, 2008); see also Threadgill v. Bd. of

Pro’l Resp., 299 S.W.3d 792, 812 (Tenn. 2009) (“The law is clear that statements of fact

made in or attached to pleadings [or] briefs ... are not evidence and may not be

considered by an appellate court unless they are properly made part of the record.”).

Accordingly, although we take some of the foregoing facts from documents attached to

Appellant’s brief but not made part of the appellate record, these facts do not bear on the

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ultimate disposition of the appeal. This Court has appellate jurisdiction only; and our

power to review is limited to those “factual and legal issues for which an adequate legal

record has been preserved.” Trusty v. Robinson, No. M2000-01590-COA-R3-CV, 2001

WL 96043, at * 1 (Tenn. Ct. App. Feb. 6, 2001) (citing Dorrier v. Dark, 537 S.W.2d 888,

890 (Tenn.1976); Trollinger v. Tenn. Farmers Mut. Ins. Co., No. 58, 1989 WL 22766,

at *2 (Tenn. Ct. App. Mar. 17, 1989)). Our authority to review a trial court’s decision is

limited to those issues for which an adequate legal record has been preserved. Taylor v.

Allstate Ins. Co., 158 S.W.3d 929, 931 (Tenn. Ct. App. 2004). “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.” Trusty, 2001 WL 96043, at *1 (citing Tenn. R. App.

P. 24(b); Taylor, 158 S.W.3d at 931; Realty Shop, Inc. v. RR Westminster Holding,

Inc., 7 S.W.3d 581, 607 (Tenn. Ct. App. 1999); Nickas v. Capadalis, 954 S.W.2d 735,

742 (Tenn.Ct.App.1997)).

Furthermore, we are cognizant that Appellant is proceeding pro se in this appeal.

Courts should take into account that many pro se litigants have no legal training and little

familiarity with the judicial system. Garrard v. Tenn. Dep't of Corr., No. M2013-

01525-COA-R3-CV, 2014 WL 1887298, at *3 (Tenn. Ct. App. May 8, 2014) (internal

citations omitted). Therefore, the courts give pro se litigants, who are untrained in the

law, a certain amount of leeway in drafting their pleadings and briefs. Paehler v. Union

Planters Nat’l Bank, Inc., 971 S.W.2d 393, 397 (Tenn. Ct. App. 1997). “Pro se litigants

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

burden.” Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1989). While

a party who chooses to represent himself or herself is entitled to the fair and equal

treatment of the courts, Hodges v. Tenn. Att’y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App.

2000), “[p]ro se litigants are not ... entitled to shift the burden of litigating their case to

the courts.” Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000).

Instead, pro se litigants are held to the same procedural and substantive standards to

which lawyers must adhere. Diggs v. Lasalle Nat. Bank Assoc., et al., 387 S.W. 3d 559,

563 (Tenn. Ct. App. 2012); Brown v. Christian Bros. University, 428 S.W.3d 38 (Tenn.

Ct. App. 2013), perm. app. denied (Tenn. Jan. 15, 2014).

As set out in the civil warrant, supra, Appellant averred the following causes of

action against Appellee: (1) “failure to protect elder;” (2) “failure to report abuse;” (3)

“violation of the TN Adult Protection Act;” (4) “exploitation;” (5) “coercion;” and (6)

“undue influence.” These causes of action were brought in Ms. Vaughn’s individual

capacity. As noted above, Appellant did not file a complaint in the trial court but relied

solely on her general sessions’ pleadings. The trial court dismissed the case, finding that

Appellant did not have standing to bring the lawsuit. As the Tennessee Supreme Court

has explained:

The doctrine of standing is used to determine whether a particular

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plaintiff is entitled to judicial relief. Knierim v. Leatherwood, 542 S.W.2d

806, 808 (Tenn. 1976). It is the principle that courts use to determine

whether a party has a sufficiently personal stake in a matter at issue to

warrant a judicial resolution of the dispute. SunTrust Bank, Nashville v.

Johnson, 46 S.W.3d 216, 222 (Tenn. Ct. App. 2000). Persons whose rights

or interests have not been affected have no standing and are, therefore, not

entitled to judicial relief. Lynch v. City of Jellico, 205 S.W.3d 384, 395

(Tenn. 2006).

“The sort of distinct and palpable injury that will create standing

must be an injury to a recognized legal right or interest.” Wood v. Metro.

Gov’t of Nashville and Davidson County, 196 S.W.3d 152, 158 (Tenn. Ct.

App. 2005). Such a legal right or interest may, but not must, be created or

defined by statute. “[I]n cases where a party is seeking to vindicate a

statutory right of interest, the doctrine of standing requires the party to

demonstrate that its claim falls within the zone of interests protected or

regulated by the statute in question.” Wood v. Metro. Gov't of Nashville

and Davidson County, 196 S.W.3d at 158 (citing Fed. Election Comm’n

v. Akins, 524 U.S. 11, 20, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998)).

State v. Harrison, 270 S.W.3d 21, 27–28 (Tenn.2008).

Although the primary focus of Appellant’s brief concerns allegations of emotional

distress that Appellant allegedly suffered as a result of Appellee’s keeping Decedent’s

whereabouts from Appellant or somehow abusing (or failing to protect) Decedent, these

are not, in fact, the averments specified in Appellant’s lawsuit. As set out above, the crux

of Appellant’s lawsuit involves allegations of abuse, neglect, or exploitation of the

Decedent by Appellee. Accordingly, the case falls under the purview of the Tennessee

Adult Protection Act, Tennessee Code Annotated § 71-6-101, et seq. (the “Act”). The

purpose of the Act “is to protect adults . . . from abuse, neglect or exploitation by

requiring reporting of suspected cases by persons having cause to believe that such cases

exist.” Tenn. Code Ann. § 71-6-101(b)(1). The Act is primarily a reporting statute,

meaning that an individual’s role thereunder is to report suspected abuse, neglect, or

exploitation. The individual may do so by making a direct report to the Tennessee

Department of Adult Protective Services, Tenn. Code Ann. § 71-6-103(c) (“[a]n oral or

written report shall be made immediately to the department upon knowledge of the

occurrence of suspected abuse, neglect, or exploitation.”). Alternatively, the individual

may “seek relief for the adult . . . by filing a sworn petition with any court with

jurisdiction . . . .” Tenn. Code Ann. §71-6-124(a)(1)(A) (emphasis added). Although the

Act provides different avenues for reporting suspected abuse, the goal of the Act is to

obtain intervention “for the [abused] adult” not to compensate the individual who reports

the abuse. Again, Appellant brought the instant lawsuit in her individual capacity based

on allegations of abuse, neglect, or exploitation of the Decedent. Under the Act,

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Appellant’s only standing was as a reporter, and she had no cause of action to recover

compensation for herself.

Tennessee Code section 71-6-120(b) does provide the abused adult with a private

cause of action against the perpetrator of the abuse, to-wit:

In addition to other remedies provided by law, an elderly person or disabled

adult in that person’s own right, or by conservator or next friend, shall have

a right of recovery in a civil action for compensatory damages for abuse or

neglect. . . . Such right of action against a wrongdoer shall not abate or be

extinguished by death of the elderly person or disabled adult, but shall pass

as provided in § 20-5-106, unless the alleged wrongdoer is a family

member, in which case the cause of action shall pass to the victim’s

personal representative.3

Here, Appellant filed her lawsuit after Decedent’s death, and the allegations

involved abuse on the part of Appellee, Decedent’s granddaughter (i.e., “family

member”). Under the foregoing statute, any claims involving violation of the Act would

“pass to the victim’s personal representative.” There is no evidence that Ms. Vaughn was

appointed Decedent’s personal representative. Here, standing is created by statute. In

order to bring the lawsuit, Appellant must fall “within the zone of interests protected or

regulated by the statute in question [i.e., the Act].” State v. Harrison, 270 S.W.3d at 28

(citation omitted). Accordingly, Appellant does not have standing to bring her lawsuit

for compensatory damages for abuse, neglect, or exploitation allegedly suffered by

Decedent.4

For the foregoing reasons, we affirm the order of the trial court. The case is

remanded for such further proceedings as may be necessary and are consistent with this

3

“The concept of survival of actions is applicable when a person having a cause of action in

contract or in tort or a person against whom such a cause of action may be asserted dies before an action

has been instituted.” 1 Lawrence A. Pivnick. Tennessee Circuit Court Practice § 1:18 (2017).

4

While subject matter jurisdiction over any claims concerning Appellee’s failure to report abuse

against the Decedent would lie with the circuit, chancery, or general sessions court, Tenn. Code Ann.

§71-6-114(a) (“The circuit, general sessions, and chancery courts have jurisdiction of proceedings arising

under this part.”), the subject-matter jurisdiction of any claim inuring to the benefit of the Decedent and

involving a prayer for compensatory or punitive damages falls only to the circuit and chancery courts.

Tenn. Code Ann. § 71-6-120(c) (“Jurisdiction for such action [i.e., of an elderly person (or his or her

personal representative if the elder person is deceased) to recover for abuse or neglect] shall be in the

circuit or chancery court where the elderly person or disabled adult may reside or where the actions

occurred.”). Accordingly, not only does Ms. Vaughn, who is not Decedent’s personal representative, lack

standing to bring a lawsuit for compensatory damages arising from the mistreatment of the Decedent, but

any such lawsuit would have to be filed in either circuit or chancery court. Here, Ms. Vaughn conceded,

at oral argument before this Court, that she did not file a separate lawsuit or additional pleadings in the

circuit court. Rather, she relied on her general sessions court pleadings. Accordingly, any claim Ms.

Vaugh made for compensatory or punitive damages would be barred for both lack of standing and lack of

subject-matter jurisdiction in the general sessions court.

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opinion. Costs of the appeal are assessed to the Appellant, Tina Y. Vaughn. Because

Ms. Vaughn is proceeding in forma pauperis in this appeal, execution for costs may issue

if necessary.

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KENNY ARMSTRONG, JUDGE

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