                                                                                               09/15/2017
                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                               Assigned on Briefs August 1, 2017

                       KEVIN J. MAMON V. GEICO INDEMNITY
                           INSURANCE COMPANY, ET AL.

                     Appeal from the Circuit Court for Davidson County
                      No. 12C4564     Hamilton V. Gayden, Jr., Judge


                                 No. M2016-01145-COA-R3-CV


Plaintiff appeals the dismissal of his claims against all three defendants and the award of
$400 to defendant Master Muffler on its counterclaim following a bench trial. We affirm
the trial court in all respects.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS
R. FRIERSON, II, and BRANDON O. GIBSON, JJ., joined.

Kevin J. Mamon, Michigan City, Indiana, pro se.

Joshua G. Offutt and Jennifer P. Ogletree, Nashville, Tennessee, for the appellee, Master
Muffler.

                                  MEMORANDUM OPINION1

     Kevin Mamon (“Plaintiff”) commenced this action on November 8, 2012, seeking
damages for a personal injury and breach of contract. The named defendants were Geico


       1
           Rule 10 of the Tennessee Court of Appeals 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,” and shall not be cited or
       relied on for any reason in any unrelated case.
Indemnity Insurance Company (“Geico”), Master Muffler, and Sam Owens, the owner of
Master Muffler.

       Plaintiff engaged Master Muffler in April 2012 to replace the engine in a 1998
Jeep Grand Cherokee and contends that an agreement was reached between his
automobile insurer, Geico, and Master Muffler pursuant to which Master Muffler would
service the Jeep and Geico would pay Master Muffler $1,900 for the work. Master
Muffler insists Geico never agreed to pay for the radiator; rather, Plaintiff agreed to pay
for the service to the radiator. Master Muffler acknowledges that it received payment
from Geico to replace the engine.

       Plaintiff also alleged that he had to call Master Muffler daily to inquire as to the
status of the work. When Master Muffler completed the work, it refused to release the
Jeep claiming that Plaintiff still owed $400 for the radiator. A few days later, Master
Muffler realized that the Jeep was missing and notified Plaintiff that it had been stolen;
however, it was subsequently determined that Plaintiff used his spare key to remove the
vehicle from Master Muffler’s premises without the knowledge or consent of Master
Muffler.2

        Plaintiff commenced this action on November 8, 2012. After a very lengthy and
onerous procedural history, which was principally due to Plaintiff’s acts and omissions,
the case was tried on May 4, 2016, and, not unlike many of the prior hearings, Plaintiff
failed to attend. At the conclusion of the trial, the court entered a thorough order in which
it recited the procedural history and factual background, its findings of fact, analysis, and
conclusion. In pertinent part the court held:

                This Court finds that pursuant to its Order dated November 23, 2015,
        this matter was set for a two-day jury trial to begin on April 11, 2016.
        Despite the plaintiff being incarcerated, this Court afforded the plaintiff the
        right to appear at the trial via telephone and/or video/Skype. Since the entry
        of that Order, this Court has heard nothing from the plaintiff nor did the
        Court receive any request from the plaintiff to appear for the trial by any
        other electronic device. The plaintiff was previously instructed by this
        Court in its Order dated January 9, 2015 to provide the Court and defense
        counsel of his physical location and a mailing address and upon any change
        in his physical location, and/or “mailing address” to notify the Court and
        defense counsel within 30 days. This Court notified the plaintiff that his
        failure to do so would be grounds to dismiss the plaintiff's case with

        2
        Sam Owens testified at trial that the last time he heard from Plaintiff was when Plaintiff called
him and stated, while laughing, “Well, I guess we know who won,” apparently referring to having
removed his Jeep from Master Muffler’s lot.


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      prejudice. This Court has received no such notification from the plaintiff of
      any change of address, and as such, assumes the plaintiff has had no change
      of address.

              Therefore, due to the plaintiff’s failure to appear for the set trial after
      receiving proper notification or otherwise notifying the Court of his request
      to appear for the trial by any electronic device, the Court will dismiss this
      cause for the plaintiff's failure to prosecute. The Court finds that the
      plaintiff's pauper’s oath does not permit the plaintiff to flaunt the orders of
      this Court and fail to even contact the Court prior to this hearing.

             This Court further dismisses this action on the merits. This Court
      finds that the plaintiff’s claims against Master Muffler in his Amended
      Complaint are those of conversion of a vehicle. This Court further finds
      that the plaintiff cannot maintain an action for conversion of a vehicle of
      which he cannot provide proof of ownership. Additionally, this Court finds
      that, pursuant to a letter from the plaintiff dated January 30, 2015 (Exhibit
      A), the plaintiff cannot maintain a claim for conversion as a matter of law
      for a vehicle the plaintiff unlawfully took from Master Muffler’s property.
      Lastly, any personal injury claims of the plaintiff were previously
      dismissed pursuant to this Court’s Order dated November 14, 2014.

             This Court further finds that Defendants Geico Auto Insurance and
      Sam Owens were never properly served for purposes of service of process,
      and are therefore, not proper parties to this action. As such, any claims
      against Defendant Geico Auto Insurance and Sam Owens are HEREBY
      dismissed with prejudice.

            The Court further grants Defendant Master Muffler’s counter-claim
      of $400, the cost of the repair to the plaintiff's radiator performed by Master
      Muffler.

This appeal followed.

                                                 ANALYSIS

       We have determined that a thorough analysis is not necessary or justified due to
Plaintiff’s profound failure to comply with the Tennessee Rules of Appellate Procedure
and the Rules of the Court of Appeals.3 His entire Argument appears on one page and it
reads as follows:

      3
          We have taken into account the fact Plaintiff is proceeding pro se in this appeal and that courts
                                                                                          (continued…)
                                                   -3-
                                                Argument

                The Plaintiff is entitled to a default judgment against the
                Defendants where the record demonstrates a substantial
                lapse in time on response to the Amended Complaint; and
                an asserted counterclaim is therefore without merit.

               Because the Defendants have failed to file a timely or meritorious
        defense to this lawsuit and otherwise manipulated the proceedings to obtain
        judgment in their favor, a manifest injustice has occurred which warrants
        appellate review (R§148). A court may infer that a default is willful if a
        defendant displays “either an intent to thwart judicial proceedings or a
        reckless disregard for the effect of its conduct on those proceedings.”
        Dassault Systemes, SA v. Childress, 663 F. 3d 832, 841 (6th Cir. 2011). In
        delaying their Answer, the Defendants were able to create a counterclaim
        based on the same set of facts that the Plaintiff originally presented to the
        Court (R§357).

                   THIS COURT SHOULD REVERSE THE ORDER OF
                          DISMISSAL WITH PREJUDICE.

        The court may extend the time to file an Answer on motion made after the
        time has expired if the party failed to act because of excusable neglect. Cf.
        Nafziger v. McDermott Int'l, Inc., 467 F. 3d 514, 522 (6th Cir. 2006). See
        also, Tenn. R. Civ. P. 6.

                                               Conclusion

               For all of the foregoing reasons, the Appellant respectfully requests
        that this Court reverse and remand the Order of the trial court for further
        proceedings; and for all other relief as is just and proper in the premises.




should take into account that most pro se litigants have no legal training and little familiarity with the
judicial system. See Garrard v. Tenn. Dep’t of Corr., No. M2013-01525-COA-R3-CV, 2014 WL
1887298, at *3 (Tenn. Ct. App. May 8, 2014). Therefore, we afford pro se litigants who are untrained in
the law some leeway. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). While a
party who represents himself 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, 32 S.W.3d at 227. Instead, they 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).


                                                    -4-
       But for Plaintiff also identifying three issues for us to consider, the foregoing
represents the entirety of Plaintiff’s brief.4 To make a bad situation worse, Plaintiff’s
brief only addresses one of the issues, and it does so in a woefully inadequate manner.
Moreover, his brief fails to comply with Rule 27 of the Tennessee Rules of Appellate
Procedure and Rule 6 of the Rules of the Court of Appeals.

        “Plaintiff’s failure to comply with the Rules of Appellate Procedure and the rules
of this Court waives the issues for review.” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct.
App. 2000) (citing Duchow v. Whalen, 872 S.W.2d 692 (Tenn. Ct. App. 1993); Lucas v.
Lucas, No. 03A01-9707-CV-00298, 1998 WL 136553, at *1 (Tenn. Ct. App. March 27,
1998)). “Moreover, an issue is waived where it is simply raised without any argument
regarding its merits.” Id. at 56 (citing Blair v. Badenhope, 940 S.W.2d 575, 576–77
(Tenn. Ct. App. 1996); Bank of Crockett v. Cullipher, 752 S.W.2d 84, 86 (Tenn. Ct. App.
1988)). “This Court is under no duty to verify unsupported allegations in a party's brief,
or for that matter consider issues raised but not argued in the brief.” Id. (citing Duchow,
872 S.W.2d at 693).

        Although we may suspend these requirements, the Supreme Court has held that it
will not find error if we choose not to consider a case on its merits where the appellant
fails to comply with the rules of this court. Bean, 40 S.W.3d at 55-6 (citing Crowe v.
Birmingham & N.W. Ry. Co., 1 S.W.2d 781 (Tenn. 1928)). Having reviewed the record,
the procedural history of this case, the numerous second chances the trial court afforded
Plaintiff, and Plaintiff’s failure to comply with the court’s reasonable orders, schedules,
and procedures, we find no reason to suspend the requirements.

                                          IN CONCLUSION

       The judgment of the trial court is affirmed and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal are assessed against the
appellant, Kevin J. Mamon, for which execution may issue.


                                                          ________________________________
                                                          FRANK G. CLEMENT JR., P.J., M.S.




        4
           The issues stated by Plaintiff read as follows: (1) The trial court erred in granting the
Defendants’ Motion to Amend Its Answer to Assert Counterclaims. (2) The Defendants’ counterclaims
are untimely and barred by law. (3) The trial of April 11, 2016 is voidable because the Plaintiff did not
receive sufficient notice to appear.


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