Jerry R. Clark v. James M. Owens

05/08/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 1, 2019

JERRY R. CLARK v. JAMES M. OWENS ET AL.

Appeal from the Circuit Court for Sequatchie County

No. 17-CV-82 Justin C. Angel, Judge

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No. M2018-01418-COA-R3-CV

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This is an easement case. Appellant, the dominant land owner, appeals the trial court’s

order fixing the width of the easement at 15 feet and limiting the use of the easement to

residential and emergency ingress, egress, and utilities. The appellate record contains no

transcript or statement of the evidence for our review as required by the Tennessee Rules

of Appellate Procedure. Accordingly, we conclude that there was sufficient evidence to

support the trial court’s findings. Affirmed and remanded.

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 THOMAS R.

FRIERSON and W. NEAL MCBRAYER, JJ., joined.

Jerry R. Clark, Dunlap, Tennessee, appellant, Pro se.

Everett Layne Hixson, Jr. and Everett Layne Hixson, III, Chattanooga, Tennessee, for the

appellees, James M. Owens, and Teresa M. Owens.

OPINION

Appellant Jerry R. Clark owns the dominant tract of land adjacent to the servient

tract of land owned by James M. Owens and Teresa M. Owens, (together, “Appellees”).

On April 26, 2017, Appellees filed a verified complaint, in which they sought, inter alia,

a declaratory judgment regarding Appellant’s use of the easement across their property.

Concurrent with their complaint, Appellees filed a motion for a temporary restraining

order and temporary injunction regarding Appellant’s use of the easement. The trial

court entered a temporary restraining order prohibiting Appellant from: (1) interfering

with Appellees’ construction of a fence along the existing border of the easement; (2)

driving and trespassing outside the border of the easement onto Appellees’ property; and

(3) discharging firearms in their direction.

On May 18, 2017, Appellant answered the complaint and asserted a counter-

complaint. In his answer, Appellant averred that the easement is unrestricted and denied

allegations that he and his family abused the easement in any way. In his counter-

complaint, Appellant alleged that Appellees interfered with his right-of-way and use of

the easement. He requested, inter alia, that the trial court restore the easement to 15 feet,

preserving his “right-of-way and peaceful use for unrestricted ingress, egress and

utilities.”

On September 11, 2017, Appellant filed a motion for contempt alleging that

Appellees were in violation of the temporary restraining order. On October 23, 2017,

Appellees moved to amend their complaint to add additional facts and to assert a claim

for unjust enrichment. Appellant opposed the motion and moved to dismiss the

complaint. The trial court granted Appellees’ motion to amend by order entered on

December 30, 2017 but deferred ruling on Appellant’s motion for contempt until trial.

On February 22, 2018, the trial court conducted a hearing and entered an order for

easement on March 16, 2018. Before the entry of that order, Appellees filed a motion to

reopen the proof and to alter or amend the trial court’s ruling. Appellant also moved to

alter or amend the order for easement. The trial court granted the motions of both parties

by order entered May 11, 2018.

The final trial was held on June 21, 2018, and the trial court entered a subsequent

order on July 19, 2018. The trial court fixed the width of the easement at 15 feet and

limited the use of the easement to residential and emergency ingress, egress, and utilities.

The trial court also held that: (1) Appellant was responsible for maintaining part of the

easement; (2) the parties were jointly responsible for maintaining another portion of the

easement; (3) the parties were to avoid contact with each other; and (4) the parties were

not to trespass on each other’s property. The trial court dismissed all remaining claims.

Appellant appeals. Although Appellant lists several issues for review in his brief, we do

not reach the substantive issues due to procedural shortcomings in the appellate record.

Rule 24 of the Tennessee Rules of Appellate Procedure outlines the requirements

concerning both content and preparation of the appellate record, to wit:

(a) The record on appeal shall consist of: (1) copies, certified by

the clerk of the trial court, of all papers filed in the trial court except

as hereafter provided; (2) the original of any exhibits filed in the trial

court; (3) the transcript or statement of the evidence or proceedings,

which shall clearly indicate and identify any exhibits offered in

evidence and whether received or rejected….

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(b) …the appellant shall have prepared a transcript of such part

of the evidence or proceedings as is necessary to convey a fair,

accurate and complete account of what transpired with respect to

those issues on appeal.

(Emphasis added). If no transcript is available, Tennessee Rule of Appellate Procedure

24 provides that “the appellant shall prepare a statement of the evidence or proceedings

from the best available means, including the appellant’s recollection. The statement

should convey a fair, accurate and complete account of what transpired with respect to

those issues that are the bases of appeal.” Tenn. R. App. P. 24(c) (emphasis added). The

responsibility for the preparation of the transcript or a statement of evidence is on the

parties, and the appellant has the primary burden to ensure that a proper record is

prepared and filed in this Court. Tenn. R. App. P. 24; McDonald v. Onoh, 772 S.W.2d

913, 914 (Tenn. Ct. App. 1989).

While we are cognizant that Mr. Clark is proceeding pro se, it is well-settled that

“pro se litigants are held to the same procedural and substantive standards to which

lawyers must adhere.” Brown v. Christian Bros. University, No. W2012-01336-COA-

R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5, 2013), perm. app. denied

(Tenn. Jan. 15, 2014). 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). The burden is on the Appellant to show that the

evidence preponderates against the judgment of the trial court. Coakley v. Daniels, 840

S.W.2d 367, 370 (Tenn. Ct. App. 1992) (citing Capital City Bank v. Baker, 442 S.W.2d

259, 266 (Tenn. Ct. App. 1969)). “The burden is likewise on the appellant to provide the

court with a transcript of the evidence or a statement of the evidence from which this

court can determine if the evidence does preponderate for or against the findings of the

trial court.” Id.

In this case, the appellate record contains neither a transcript of the hearing nor a

statement of the evidence pursuant to Tennessee Rule of Appellate Procedure 24(c). The

resolution of issues presented rests largely on the relevant facts. In the absence of any

record of the proceedings, this Court cannot make a meaningful review of the issues.

This Court has cautioned that where the issues on appeal turn on factual determinations,

the absence of a transcript or statement of the evidence is essentially fatal to the party

having the burden on appeal. It is well settled that, in the absence of a transcript or

statement of the evidence, this Court must presume that there was sufficient evidence

before the trial court to support its judgment. PNC Multifamily Capital Inst. Fund

XXVI Ltd. P’ship v. Mabry, 402 S.W.3d 654, 661 (Tenn. Ct. App. 2012), perm. app.

denied (Tenn. Apr. 10, 2013); Outdoor Management LLC v. Thomas, 249 S.W.3d 368,

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377 (Tenn. Ct. App. 2007); and Coakley, 840 S.W.2d at 370 (citing McKinney v.

Educator and Executive Insurers, Inc., 569 S.W.2d 829, 832 (Tenn. Ct. App. 1977));

Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992); Baugh v. Moore, No.

M2013-02224-COA-R3-CV, 2015 WL 832589, at *3 (Tenn. Ct. App. Feb. 25, 2015).

Without a transcript or statement of the evidence, we have no way to determine whether

the evidence was sufficient to support the trial court’s findings of fact and its conclusions

of law based on those facts. In other words, our ability to address the issues presented by

Appellant in this appeal “is severely hampered if not eliminated by the absence of

transcripts of the hearing or the trial, or any statement of the evidence prepared in

accordance with Tenn. R. App. P. 24(c).” Rowe v. Rowe, No. E2005-01023-COA-R3-

CV, 2007 WL 541813, at *5 (Tenn. Ct. App. Feb. 22, 2007). Because there is no

transcript or Rule 24 statement of the evidence, the facts found by the trial court are

conclusive on appeal, and we conclude that there is sufficient evidence in the record to

support those findings.

Attorneys’ Fees

Appellees request their attorneys’ fees and costs on appeal. Tennessee Code

Annotated section 27-1-122 states that:

When it appears to any reviewing court that the appeal from any court of

record was frivolous or taken solely for delay, the court may, either upon

motion of a party or of its own motion, award just damages against the

appellant, which may include but need not be limited to, costs, interest on

the judgment, and expenses incurred by the appellee as a result of the

appeal.

Tenn. Code Ann. § 27-1-122. “A frivolous appeal is one that is ‘devoid of merit,’ or one

in which there is little prospect that [an appeal] can ever succeed.” Morton v. Morton,

182 S.W.3d 821, 838 (Tenn. Ct. App. 2005) (quoting Industrial Dev. Bd. of the City of

Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995)). Because

Appellant failed to provide this Court with a record that would allow us to review the trial

court’s findings, we conclude that this appeal had no prospect of succeeding. Therefore,

the appeal is frivolous, and we award Appellees their attorney fees on appeal. The case is

remanded to the trial court for a determination of the appropriate amount of Appellees’

attorney fees and entry of judgment thereon.

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

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

opinion, including but not limited to calculation of Appellees’ appellate attorneys’ fees

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and entry of judgment thereon. Costs of the appeal are assessed against the Appellant,

Jerry R. Clark, for all of which execution may issue if necessary.

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KENNY ARMSTRONG, JUDGE

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