                                                                                         10/09/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                    Assigned on Briefs September 4, 2019

        KONDAUR CAPITAL CORPORATION V. KEITH T. FINLEY

                  Appeal from the Circuit Court for Shelby County
                   No. CT-004976-13       Gina C. Higgins, Judge


                            No. W2019-00143-COA-R3-CV


The mortgage holder on property in Cordova, Tennessee initiated foreclosure
proceedings against the mortgagor in general sessions court and obtained a judgment.
The mortgagor appealed to circuit court, the mortgage holder moved for summary
judgment, and the circuit court ultimately granted summary judgment in favor of the
mortgage holder. The circuit court denied the mortgagor’s motion for relief pursuant to
Tenn. R. Civ. P. 60.02, and this Court dismissed the mortgagor’s appeal.

In the case at issue in the present appeal, the mortgagor filed another motion for relief
pursuant to Tenn. R. Civ. P. 60.02 in the circuit court, and the circuit court again denied
the motion. We conclude that the mortgagor has failed to comply with the Tennessee
Rules of Appellate Procedure and has waived all issues stated in his brief. Consequently,
we dismiss the appeal.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY
and CARMA DENNIS MCGEE, JJ., joined.

Keith T. Finley, Memphis, Tennessee, pro se.

Nicholas Henry Adler, Brentwood, Tennessee, for the appellee, Kondaur Capital
Corporation.

                                       OPINION

                       FACTUAL AND PROCEDURAL BACKGROUND

      Keith T. Finley and Emma Craig owned real property located on Cross Ridge
Road in Cordova, Tennessee. Kondaur Capital Corporation (“Kondaur”) filed a detainer
warrant in the general sessions court against Mr. Finley and Ms. Craig in September
2013, and the court granted Kondaur a writ of possession on November 4, 2013. Mr.
Finley appealed the decision of the general sessions court to the circuit court.1

        Kondaur filed a motion for summary judgment in the trial court on December 9,
2013. On February 11, 2014, the trial court entered an order granting the plaintiff’s
motion for summary judgment and awarding Kondaur possession of the property. The
court noted that the defendants “were not present at the hearing,” but found that they
“were properly noticed” and had filed a response. Mr. Finley filed a document he
denominated a motion to set aside the judgment or a motion under Tenn. R. Civ. P. 60 on
February 26, 2014, in which he argued that he did not receive fair notice of the hearing
on the motion for summary judgment. On April 7, 2014, the trial court entered an order
setting aside the judgment and resetting the motion for summary judgment for a hearing
on the merits. Kondaur’s motion for summary judgment was reheard on June 27, 2014.
In an order entered on July 17, 2014, the trial court denied the motion without prejudice
and encouraged the parties to “continue discovery efforts to ascertain the origin of the
Note that was introduced by Defendant.” Kondaur filed a motion for reconsideration and
to alter or amend the judgment on July 30, 2014.

        On August 29, 2014, the trial court entered an order granting summary judgment
in favor of Kondaur. Mr. Finley’s counsel was not present at the August 22, 2014
hearing. The court found that the defendants “were properly noticed of the Motion and
hearing date as shown by the certificate of service attached to the Motion.” The court
further found that “[t]he Plaintiff’s Motion for Summary Judgment is well taken and
Plaintiff is entitled to judgment as a matter of law.” The trial court set aside and vacated
its previous order as to paragraph one (in which the court denied the motion for summary
judgment), granted the plaintiff’s motion for summary judgment and awarded Kondaur
possession of the property.

       The trial court denied Mr. Finley’s motion to alter or amend the judgment in an
order entered on December 5, 2014. Kondaur filed a motion to amend the judgment on
February 3, 2015, to add omitted language, and the trial court entered an order on
February 6, 2015, amending the judgment.2 Kondaur subsequently executed on the writ
of possession.

       On October 9, 2015, Mr. Finley filed a motion under Tenn. R. Civ. P. 60.02
requesting that the trial court set aside the August 29, 2014 order granting summary

1
 Because this appeal concerns Mr. Finley only, the subsequent recitation of the facts shall not reference
Ms. Craig.
2
  The February 6, 2014 order added language providing that Kondaur be restored to possession of the
property and requiring the court clerk to issue a writ of possession.


                                                  -2-
judgment and grant relief from the writ of possession. In a December 30, 2016 order, the
trial court denied Mr. Finley’s motion.3 Mr. Finley appealed the trial court’s decision to
this Court and, on October 31, 2017, this Court entered an order dismissing the appeal for
failure to comply with Rule 24 of the Tennessee Rules of Appellate Procedure.

      On October 16, 2018, Mr. Finley filed a document in the trial court entitled
“Defendants’ Motion to Vacate Void Judgment Pursuant to Federal Rule of Civil
Procedure 60(b)(4).” In this motion, Mr. Finley asserted that the trial court’s judgment
dated August 29, 2014, should be vacated for lack of subject matter jurisdiction. He
argued that he was never properly served with notice of the hearing. The trial court heard
this motion on December 14, 2018; in an order entered on January 7, 2019, the court
denied Mr. Finley’s motion. The trial court found as follows:

        [T]he issues raised in the present Motion have already been litigated by the
        parties and ruled upon by this Court by Order entered December 30, 2016.
        Therefore the issues are res judicata and the Defendant’s Motion is
        DENIED.

        In this appeal, Mr. Finley raises several issues, which we restate as follows:

        1. Whether the trial court’s decision violated Mr. Finley’s due process
        rights to notice and an opportunity to be heard.
        2. Whether the trial court erred in denying Mr. Finley’s motion to vacate
        the judgment under Tenn. R. Civ. P. 60.

In addition to arguing that the trial court acted within its discretion, Kondaur asserts that
the appeal is moot because Mr. Finley has been evicted and the underlying property sold
to a third party.

                                        STANDARD OF REVIEW

       Appellate courts apply an abuse of discretion standard of review to determine
whether a trial court erred in denying a party’s motion to set aside a judgment pursuant to
Tenn. R. Civ. P. 60.02. Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010);
Pryor v. Rivergate Meadows Apartment Assocs. Ltd. P’ship, 338 S.W.3d 882, 885 (Tenn.
Ct. App. 2009). Our Supreme Court has addressed what it means for a trial court to
exercise its discretion properly, stating:



3
  In its decision, the trial court noted that Kondaur first attempted to foreclose on the property at issue in
May 2010, and Mr. Finley filed an action for wrongful disclosure that was removed to federal district
court. According to the trial court, “the District Court determined that Finley was the proper ‘mortgagor-
in-possession’ of the property, pending any other foreclosure proceedings.”
                                                    -3-
      Discretionary decisions must take the applicable law and the relevant facts
      into account. An abuse of discretion occurs when a court strays beyond the
      applicable legal standards or when it fails to properly consider the factors
      customarily used to guide the particular discretionary decision. A court
      abuses its discretion when it causes an injustice to the party challenging the
      decision by (1) applying an incorrect legal standard, (2) reaching an
      illogical or unreasonable decision, or (3) basing its decision on a clearly
      erroneous assessment of the evidence.

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citations omitted). When
a discretionary decision is appealed, the reviewing court is not permitted to second-guess
the trial court’s judgment or substitute its discretion for that of the lower court. Id.

                                        ANALYSIS

        Before addressing Mr. Finley’s arguments, we note that he is a pro se litigant.
This court has applied the following standards when evaluating the claims of pro se
litigants:

      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.

Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (citations omitted); see
also Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003). We allow pro se
litigants some latitude in preparing their briefs and endeavor to “give effect to the
substance, rather than the form or terminology,” of their court filings. Young, 130 S.W.3d
at 63.

      I. Constitutional issue.

       Although he lists a constitutional issue under his statement of the issues, Mr.
Finley provides no argument or citation of authority in support of this issue in the
argument section of his brief. Tennessee Rule of Appellate Procedure 27(a) provides that
the appellant’s brief must contain an argument setting forth “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.” TENN.

                                           -4-
R. APP. P. 27(a)(7)(A). Moreover, Rule 6 of the Rules of the Tennessee Court of Appeals
provides, in pertinent part, as follows:

       (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.
       (b) 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.

        The argument section of Mr. Finley’s appellate brief contains no reference to the
due process issue raised in his statement of issues. As our Supreme Court has stated, “It
is not the role of the courts . . . 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). We, therefore,
consider this issue waived.

       II. Rule 60.02 motion.

       In the argument section of his brief, Mr. Finley asserts that he filed his original
Rule 60.02 motion because the August 29, 2014 judgment “is wholly void due to a lack
of Subject Matter Jurisdiction and Personal Jurisdiction and Fraud on the Court.” Mr.
Finley further avers that Kondaur never attempted to prove subject matter jurisdiction or
personal jurisdiction. He goes on to state principles of law and to cite cases regarding
subject matter jurisdiction and fraud upon the court. Mr. Finley does not, however, make
any argument or provide any explanation as to how subject matter jurisdiction or personal
jurisdiction is lacking in this case or how the elements of fraud are present. As stated



                                             -5-
above, it is not the role of this court to craft arguments for a litigant.4 See Sneed, 301
S.W.3d at 615.

       Moreover, the record does not contain a transcript of the hearings on August 22,
2014 (for the August 29, 2014 judgment) or March 4, 2016 (for the December 30, 2016
order denying the Rule 60.02 motion). Our ability to address the issues is severely
hampered, if not completely eliminated, by the absence of either a transcript of the
hearings or Tenn. R. App. P. 24(c) statements of the evidence documenting the evidence
introduced at the hearings. Mr. Finley, as the appellant, had the duty “‘to prepare a
record which conveys a fair, accurate and complete account of what transpired in the trial
court with respect to the issues which form the basis of the appeal.’” Boggs v. Rhea, 459
S.W.3d 539, 546 (Tenn. Ct. App. 2014) (quoting Nickas v. Capadalis, 954 S.W.2d 735,
742 (Tenn. Ct. App. 1997)). We cannot review the facts without an appellate record
containing the facts. Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992).

       When a party fails to comply with Tenn. R. App. P. 27, this court has the authority
to deem an issue(s) waived. Watt v. Watt, No. M2014-02565-COA-R3-CV, 2016 WL
1730659, at *4 (Tenn. Ct. App. Apr. 27, 2016). We exercise our discretion to do so with
respect to Mr. Finley’s Rule 60.02 issues.

        III. Mootness.

       Kondaur argues that, because Mr. Finley was evicted from the property and
Kondaur sold the property to a third party, this appeal is moot. Because we have decided
the issues on other grounds, we need not address this argument.

       Because Mr. Finley has waived all of the issues he raised, we exercise our
discretion to dismiss this appeal. See Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App.
2000).

                                             CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant, Keith T. Finley, for which execution may issue
if necessary.


                                                          ________________________________
                                                          ANDY D. BENNETT, JUDGE


4
  We further note that, in his statement of the facts, Mr. Finley did not include a single citation to the
record, in violation of Tenn. R. App. P. 27(a)(6).
                                                  -6-
