                                                                                       04/12/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               January 16, 2019 Session

PAUL MCMILLIN v. REALTY EXECUTIVES ASSOCIATES, INC., ET AL.

                     Appeal from the Circuit Court for Knox County
                       No. 1-422-15    Kristi M. Davis, Judge


                            No. E2018-00769-COA-R3-CV


Paul McMillin (“Plaintiff”) appeals the April 11, 2018 order of the Circuit Court for
Knox County (“the Trial Court”) finding Plaintiff in violation of Tenn. R. Civ. P. 11 and
awarding $19,983.94 in sanctions to be paid to the attorney for Realty Executives
Associates, Inc. and Tammy Garber (“Defendants”). Plaintiff raises issues regarding the
Trial Court’s grant of summary judgment to Defendants and the Trial Court’s grant of
sanctions. We find and hold that Plaintiff waived his issues with regard to the grant of
summary judgment. We further find and hold that the Trial Court did not err in finding
Plaintiff in violation of Tenn. R. Civ. P. 11 and awarding sanctions. We, therefore,
affirm.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and JOHN W. MCCLARTY, JJ., joined.

Paul McMillin, Mt. Juliet, Tennessee, pro se appellant.

Ellis A. Sharp, Knoxville, Tennessee, for the appellees, Realty Executives Associates,
Inc. and Tammy Garber.
                                       OPINION

                                      Background

        Plaintiff acting pro se sued Defendants alleging, among other things, that Tammy
Garber (“Realtor”) was the listing agent for a house that was part of Plaintiff’s mother’s
estate (“the House”). Although Plaintiff raised several claims, all but a claim for slander
against Realtor were dismissed early on in the suit. With regard to the claim for slander,
Plaintiff alleged that when Realtor showed the House to Stephen Shuman and Heather
Shuman, Realtor made defamatory statements that: the construction of the House was not
complete and utilities had been turned off because Plaintiff had removed funds from his
mother’s estate; that Plaintiff had sued several people and the Shumans might not want to
become involved with Plaintiff; that the House had plumbing issues that would cost
several thousand dollars to repair; and, that Plaintiff had removed expensive appliances
and replaced them with cheaper ones and pocketed the excess money.

       Defendants filed a motion for summary judgment alleging that Plaintiff cannot
prove any damages as a result of the alleged defamatory statements and that Realtor
reasonably believed the statements to be true when made. Defendants also sought
sanctions against Plaintiff for pursuing the claim after depositions revealed the lack of
damages and defense counsel notified Plaintiff and requested Plaintiff to nonsuit the case.
Defendants supported their motion for summary judgment with excerpts from the
depositions of Stephen Shuman and Heather Shuman, which revealed:

      Stephen Shuman is a close friend and former roommate of Plaintiff’s son.

      Plaintiff asked Mr. Shuman to contact Realtor and schedule a showing of the
      House in order to obtain information regarding the condition of the House.

      Both Stephen Shuman and Heather Shuman admitted they were not interested in
      purchasing the House, but that they represented to Realtor that they were potential
      buyers.

      Mr. Shuman admitted that he told Realtor that he was a physician’s assistant,
      which is not true, so it would appear he could afford the House.

      After the showing Mr. Shuman contacted Plaintiff to report what Realtor had said
      during the showing.

      Both of the Shumans were asked if the statements made by Realtor had any effect
      on their opinion of Plaintiff, and both stated unequivocally that the statements had
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       no effect. Heather Shuman stated: “Had I been a person that did not know
       [Plaintiff], I thought maybe that wasn’t appropriate for a real estate agent to bring
       up. But I knew him, so I just made my own judgment.” Stephen Shuman stated
       that the statements altered his opinion: “Not at all. . . . I’ve always found
       [Plaintiff’s] moral standard is above reproach.”

      Plaintiff previously had filed the affidavit of Stephen Shuman in which Mr.
Shuman swore under oath: “[b]y the end of my tour of the property, I was not only
discouraged from further considering purchasing the house but was led to believe that I
wouldn’t be able to buy it at all, in any reasonable time frame.”

       The Trial Court found this statement in Mr. Shuman’s affidavit “can only be
described as a willful lie, as Mr. Shuman admitted in his deposition that he and his wife
never actually considered purchasing the house. The entire ‘showing’ was a ruse, set up
by the plaintiff, in order for the plaintiff to obtain information about the condition of the
property.”

       By order entered February 22, 2018, the Trial Court granted Defendant’s motion
for summary judgment stating, inter alia:

       Even assuming the alleged statements were defamatory, the only two
       individuals to whom [Realtor] published the statements were not affected
       by the statements in any way. There is simply no proof that [Plaintiff]
       suffered any injury to his character or reputation. Accordingly, the
       plaintiff’s claim fails as a matter of law.

        The February 22, 2018 order also found Plaintiff’s conduct to be in violation of
Tenn. R. Civ. P. 11 for: 1) Plaintiff submitting the affidavit of Stephen Shuman knowing
that it contained a false statement; and 2) Plaintiff filing and maintaining an action for
slander when he knew or should have known that he suffered no damages. The February
22, 2018 order required Plaintiff to show cause within thirty days why he should not be
found in violation of Tenn. R. Civ. P. 11 and sanctioned.

       Plaintiff filed a response to the show cause order alleging that he was denied due
process, that the motion seeking sanctions under Rule 11 was improperly filed, that the
Trial Court’s order to show cause was improper because the Trial Court was prejudiced
by being presented with excerpts from depositions without knowledge that Plaintiff had
made objections during the depositions, and that the order to show cause was improper
because the transcribed depositions were not provided to the witnesses for examination.



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       Defendants filed a response to Plaintiff’s response to the show cause order
pointing out that Plaintiff never addressed why he knowingly submitted a false affidavit
or why he pursued a frivolous claim.

       After a hearing on the show cause order, the Trial Court entered its order on April
11, 2018 finding Plaintiff in violation of Rule 11 and ordering him to pay $19,983.94 in
sanctions representing legal fees as shown by defense counsel. During the hearing,
Plaintiff argued he could not be held in violation of Rule 11 because Defendants filed the
motion seeking sanctions with their motion for summary judgment and did not give him
twenty-one days after service to withdraw or correct. He also argued that the Trial Court
was prejudiced when it entered the show cause order because it saw the motion for
sanctions improperly, i.e., before the twenty-one day safe harbor period had expired.

       In its memorandum opinion incorporated into the April 11, 2018 order by
reference, the Trial Court stated that it entered the show cause order sua sponte pursuant
to Tenn. R. Civ. P. 11(b) based upon its review of the file containing the affidavit of
Stephen Shuman and the deposition testimony of both Stephen Shuman and Heather
Shuman. In the memorandum opinion the Trial Court also stated:

             Number 1, [Plaintiff] filed, in support of his complaint, or early on in
      the proceedings, at least, an affidavit of Mr. Shuman wherein Mr. Shuman
      went through everything that happened. He didn’t disclose in the affidavit
      that he was not an actual buyer. He said he went and looked at the
      property, and he specifically said in the affidavit that “I was dissuaded from
      further considering purchasing the house based on the comments that
      [Realtor] made.” And that is just 100 percent bull. I mean, I don’t even
      know how to say how false that was. It’s a perpetuation of this fake claim.
      He was never further dissuaded from purchasing a house, when he never
      had any intention of purchasing it to begin with. So I have a real problem
      with filing a false affidavit. And, [Plaintiff], you either knew or should
      have known that that was false, because he never considered purchasing it,
      and that was true from the get-go. That was not a surprise to anyone. So
      for him to say that to try and make out a claim, I don’t even know what to
      say about it.

             The other problem that I have is depositions were then taken where
      the Shumans were asked, well - - after these statements were made by
      [Realtor] that were allegedly false and defamatory - - did that change your
      opinion of [Plaintiff], and they unequivocally said no. These are the only
      two people to whom the allegedly defamatory statements were made. So in
      order to establish damages, which you have to have to have a lawsuit, you
      have to show that you were damaged in some way, your reputation was
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        damaged, to the people who heard it, that somehow they thought less of
        you, that there was something bad that happened as a result of hearing these
        allegedly false and defamatory statements. That’s just an element of
        pursuing a claim for defamation. You’ve got to have damages, and that’s
        how you establish damages.

               And it was very clear when these depositions were taken of the
        Shumans that the only two people who heard these allegedly defamatory
        statements, that it did not affect them in any way. They specifically said in
        their depositions, we didn’t think any less of [Plaintiff], we didn’t believe
        what she was saying, he’s our friend, we’re for [Plaintiff], obviously,
        because that’s why we were there to begin with.

               So at least as of the time of the taking of the depositions we have the
        second problem of there being absolutely no damages in this case
        whatsoever, just none. And, yet, yet we still have the pursuing of the
        lawsuit.

Plaintiff appeals the Trial Court’s April 11, 2018 order to this Court.

                                                Discussion

       Although not stated exactly as such, Plaintiff raises four issues on appeal: 1)
whether the Trial Court erred in levying $250 in sanctions against Plaintiff allegedly in
the absence of compliance with Tenn. R. Civ. P. 11; 2) whether the Trial Court erred in
hearing Defendants’ motion for summary judgment allegedly in the absence of
compliance with Tenn. R. Civ. P. 56.04; 3) whether the Trial Court erred in granting
summary judgment based upon deposition testimony given by Stephen Shuman and
Heather Shuman allegedly in the absence of compliance with Tenn. R. Civ. P. 30.05; and,
4) whether the Trial Court erred in levying sanctions against Plaintiff in the amount of
$19,983.94 on its own initiative.1

       We consider Plaintiff’s first three issues together as the analysis is the same. The
Trial Court’s order levying $250 in sanctions was entered on January 4, 2018. The order
granting summary judgment to Defendants was entered on February 22, 2018. Plaintiff


1
  Defendants make a one sentence request in their brief on appeal for an award of attorney’s fees, but they
fail to raise this as an issue in a statement of the issues. “Courts have consistently held that issues must be
included in the Statement of Issues Presented for Review required by Tennessee Rules of Appellate
Procedure 27(a)(4). An issue not included is not properly before the Court of Appeals.” Hawkins v. Hart,
86 S.W.3d 522, 531 (Tenn. Ct. App. 2001).
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did not file his notice of appeal until April 27, 2018. No post-judgment motions were
filed.2

       Tennessee Rule of Appellate Procedure 4 then in effect provides that “the notice
of appeal required by Rule 3 shall be filed with the clerk of the appellate court within 30
days after the date of entry of the judgment appealed from . . . .” Tenn. R. App. P. 4(a).
“The thirty-day time limit for filing a notice of appeal is mandatory and jurisdictional in
civil cases.” Albert v. Frye, 145 S.W.3d 526, 528 (Tenn. 2004). Pursuant to Tenn. R.
App. P. 2 this Court may not waive the procedural defect. Tenn. R. App. P. 2.

        As our Supreme Court has explained:

                The date of entry of a final judgment in a civil case triggers the
        commencement of the thirty-day period in which a party aggrieved by the
        final judgment must file either a post-trial motion or a notice of an appeal.
        See Tenn. R. Civ. P. 59.02;3 Tenn. R. App. P. 4(a)-(b)4. If timely, certain
        post-trial motions, such as Defendants’ motion to alter or amend, will toll
        commencement of the thirty-day period for filing a notice of appeal until
        the trial court enters an order granting or denying the motion. Tenn. R.
        App. P. 4(b); see Binkley v. Medling, 117 S.W.3d 252, 255 (Tenn. 2003). If
        a post-trial motion is not timely, the trial court lacks jurisdiction to rule on
        the motion. See Binkley, 117 S.W.3d at 255. Similarly, if the notice of
        appeal is untimely, the Court of Appeals lacks subject matter jurisdiction
        over the appeal. Id.; see also Tenn. R. App. P. 2 (stating that appellate
        courts may not suspend the thirty-day time period for filing a notice of
        appeal).

Ball v. McDowell, 288 S.W.3d 833, 836 (Tenn. 2009) (footnotes in original but
renumbered).

       As Plaintiff filed his notice of appeal well outside of the mandatory thirty day time
period after the entry of the judgment, Plaintiff failed to timely appeal any issues with
2
  Defendants filed a supplemental motion for sanctions, but this is not one of the motions that pursuant to
Tenn. R. Civ. P. 59 tolls the time for filing an appeal.
3
   Rule 59.02 of the Tennessee Rules of Civil Procedure states: “A motion for new trial and all other
motions permitted under this rule shall be filed and served within 30 days after judgment has been entered
in accordance with Rule 58.”
4
  Rule 4(a) of the Tennessee Rules of Appellate Procedure provides that the notice of appeal “shall be
filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment
appealed from.” Rule 4(b) provides that if a party to a civil action files one of several enumerated post-
trial motions, “the time for appeal for all parties shall run from the entry of the order denying a new trial
or granting or denying any other such motion.”
                                                       6
regard to the levying of the $250 sanction or the grant of summary judgment. As
Plaintiff’s appeal as to these issue was untimely, we will not address them.

       We turn now to Plaintiff’s issue regarding whether the Trial Court erred in levying
sanctions against Plaintiff in the amount of $19,983.94 on its own initiative. In its
February 22, 2018 order, the Trial Court entered a show cause order finding:

      The Court finds the following conduct to be in violation of Rule 11: (1) Mr.
      McMillin submitted the affidavit of Stephen Shuman, knowing that it
      contained a false statement; and (2) Mr. McMillin filed and maintained an
      action for slander when he either knew or should have known that he
      suffered no damages and that such a claim was, therefore, without merit.
      The Court directs Mr. McMillin to submit a written response within thirty
      days of this Order to show cause as to why he should not be found to be in
      violation of Rule 11 and why this Court should not impose a monetary
      sanction upon him.

       A court may issue a show cause order upon its own initiative pursuant to Tenn. R.
Civ. P. 11.03(b), which provides:

      (b) On Court’s Initiative. On its own initiative, the court may enter an
      order describing the specific conduct that appears to violate subdivision
      11.02 and directing an attorney, law firm, or party to show cause why it has
      not violated subdivision 11.02 with respect thereto.

Tenn. R. Civ. P. 11.03(b). We find no error in the Trial Court entering the show cause
order upon its own initiative as stated in the memorandum opinion incorporated into the
April 11, 2018 order by reference.

       We note that Plaintiff submitted a written response to the show cause order
alleging that the show cause order violated his due process rights, that the show cause
order was unlawful and improper because it was based upon Defendant’s motion for
summary judgment, that the show cause order was unlawful and improper because during
the depositions of Stephen Shuman and Heather Shuman Plaintiff had made objections
that had not yet been ruled upon, and that the show cause order was unlawful and
improper because the depositions of Stephen Shuman and Heather Shuman had not been
provided to the deponents for examination. Importantly, nowhere within his response did
Plaintiff directly or otherwise address the Trial Court’s finding that Plaintiff had
submitted the affidavit of Stephen Shuman knowing that it contained a false statement
and that Plaintiff had filed and maintained an action for slander when he either knew or
should have known that he suffered no damages and that such a claim was, therefore,
                                            7
without merit. Plaintiff failed to address either of the Trial Court’s findings of a violation
of Tenn. R. Civ. P. 11. We find no error in the Trial Court’s entry of its April 11, 2018
order sanctioning Plaintiff for his violation of Tenn. R. Civ. P. 11 and ordering Plaintiff
to pay $19,983.94 to Defendants’ counsel.

                                        Conclusion

       The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Paul McMillin.



                                           __________________________________
                                           D. MICHAEL SWINEY, CHIEF JUDGE




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