       IN THE COURT OF APPEALS OF TENNESSEE

                                             FILED
                                           November 22, 1999

                                           Cecil Crowson, Jr.
                                          Appellate Court Clerk
                                          AT KNOXVILLE




DEBBIE KAY MARION, as next                     ) C/A NO. 03A01-9906-CV-00229
friend for JONI MARION and JOY )
K. BOWLING, children under the age             ) SCOTT CIRCUIT
of 18 years,                                   )
                                               ) HON. CONRAD TROUTMAN,
       Plaintiff-Appellee,                     ) JUDGE
                                               )
vs.                                            )
                                               )
CHARLES DAVID BOWLING,                         )
                                               )
       Defendant-Appellant.                    )




                             DISSENTING OPINION



              I dissent on the issues of appointment of counsel and being present in court.

              I premise my analysis by saying that “there is no absolute right to counsel in

civil cases”. See Memphis Board of Realtors v. Cohen, 786 S.W.2d 951 (Tenn. App.

1989); Presley v. Hanks, 782 S.W.2d 482 (Tenn. App. 1989); In re: Rockwell, 673 S.W.2d

512 (Tenn. App. 1983), but in this case, defendant filed a motion seeking the appointment of

counsel, and as the majority notes, the Trial Court “did not respond to the motion”.

              Defendant contends that he wanted a jury trial, but due to his limited education

and lack of legal training, he did not timely make a demand. The majority’s response is that

defendant never asked for a jury trial.



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              Defendant also argues that he was denied due process because he was not

permitted to be present for trial. As the majority notes, the record contains two motions

filed by defendant requesting that he be brought to attend pre-trial hearings, but apparently

the Trial Judge never entered an order on these motions. The majority quotes from Tolbert,

to the effect that “the question of whether to permit a prisoner/litigant in a civil case to be

physically present in court is within the trial court’s sound discretion”.

       The failure of the Trial Judge to exercise his discretion on the motion for appointing

counsel, and his failure to exercise his discretion in determining whether the defendant

should be present for the trial, do not comport with fundamental fairness which is the right

of all litigants. Defendant was entitled to have the merits of these motions duly considered

by the Trial Judge. We said in Thornburgh v. Thornburgh, 937 S.W.2d 925, 926 (Tenn.

App. 1996), that while generally in civil cases relief may not be premised upon a theory of

ineffective assistance of counsel, there are cases where the facts are so egregious that

justice may require some relief.

              The majority bases its ruling in part on the assumption that the defendant

chose to represent himself and cited Irvin v. City of Clarksville. I cannot say on this record

that the defendant “chose to represent himself”. In my view, it was a denial of procedural

due process for the court to ignore motions of substance by proceeding as if they had not

been filed.

              Clearly it is not a function of this Court to exercise a trial judge’s discretion,

and then decide if the discretion we exercized for the Trial Court was an abuse!

              Accordingly, I would vacate the judgment and remand for a new trial for the

foregoing reasons.




                                            __________________________
                                            Herschel P. Franks, J.


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