                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                         Submitted on Briefs October 29, 2015


     GAIL D. SMITH v. THE KING’S DAUGHTERS AND SONS HOME

                 Appeal from the Chancery Court for Shelby County
                     No. CH1219382 Jim Kyle, Chancellor

                         ________________________________

              No. W2015-00435-COA-R3-CV – Filed December 11, 2015
                      _________________________________


This is a retaliatory discharge case. Appellant worked for the Appellee nursing home.
Appellant reported that patient abuse was occurring at her employer‟s facility. The
Tennessee Department of Health investigated the Appellee‟s facility, but found no
wrongdoing. In response to the Appellant‟s reporting, Appellee‟s employees allegedly
harassed the Appellant. Appellant notified Appellee that she would not report to work the
day after the alleged harassment. However, she also did not report to work or call in the day
after that, and Appellee terminated her employment. The trial court granted Appellee‟s
individual employees‟ motions to dismiss and later granted the Appellee‟s motion for
summary judgment. The trial court also denied the Appellant‟s oral motion to amend her
complaint at the summary judgment hearing. We affirm.

    Tenn. R. Civ. Pro. 3 Appeal as of Right; Judgment of the Chancery Court is
                             Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and BRANDON O. GIBSON, J., joined.

Gail D. Smith, Memphis, Tennessee, appellant, pro se.

George T. Lewis, III, Stephen D. Goodwin, and Joann Coston-Holloway, Memphis,
Tennessee, for the appellee, The King‟s Daughters and Sons Home.
                                     MEMORANDUM OPINION1

                                                I. Background

        On May 25, 2006, Gail D. Smith (“Appellant”) began working as a Certified Nursing
Assistant at The King‟s Daughters and Sons Home (“KDSH” or “Appellee”), a nursing
home. On December 16, 2011, Ms. Smith reported to the Tennessee Department of Health
(“TDH”) that she witnessed three KDSH employees physically, emotionally, and verbally
abuse three of the home‟s residents. Ms. Smith received a letter from the Department of
Health, dated December 19, 2011, acknowledging her claim of patient abuse. In a letter
dated December 21, 2011, TDH informed Ms. Smith that a TDH surveyor made an
“unexpected visit” to KDSH on December 20, 2011, and the surveyor did not find that any
“rules or laws were being violated.” Ms. Smith claims that on December 21, 2011, the three
employees she accused of abusing patients harassed her during lunch. Ms. Smith reported
the alleged harassment to Nicole B. Wiles, an assistant administrator at KDSH; however, Ms.
Wiles took no action in response to Ms. Smith‟s report. Ms. Smith notified KDSH that she
would not report to work the following day, December 22, 2011. Ms. Smith did not report to
work on December 22, 2011; however, she also did not report to work on December 23,
2011. KDSH‟s employee handbook states that “Employees absent for one (1) day without
reporting in will be considered as having „voluntarily‟ quit and their position filled.” On
December 27, 2011, KDSH terminated Ms. Smith‟s employment, citing her as a “No call no
show” on December 23, 2011.

        On December 27, 2012, Ms. Smith filed a complaint for retaliatory discharge against
KDSH. Ms. Smith claimed retaliatory discharge under the Tennessee Adult Protection Act,
Tennessee Public Protection Act, and the common law. The complaint also named Ronald B.
Arrison, Executive Director, Nicole B. Wiles, Assistant Administrator, Pamela Barton,
Director of Nursing, Pamela Dixon, Assistant Director of Nursing, and Teresa King, Staffing
Coordinator (collectively, “the individual defendants”) as defendants. On January 7, 2013,
Ms. Smith filed an amended complaint, reasserting her claims for retaliatory discharge and
also making claims for tortious interference with at-will employment, intentional infliction of
emotional distress, and negligent hiring, retention, and supervision. On February 7, 2013, all
of the individually named defendants filed separate motions to dismiss, and KDSH filed its

1
    Rule 10 of the Rules of the Court of Appeals of Tennessee 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”, shall not be published, and shall not be cited or
          relied on for any reason in any unrelated case.
                                                         2
answer to the complaint on the same day.

       On March 20, 2013, KDSH filed a motion to recuse the Chancellor assigned to the
case, and the Chancellor agreed to the recusal in an order dated May 7, 2013. The case was
then transferred to Division II of the Shelby County Chancery Court (“trial court”). On
October 7, 2013, the trial court heard the individual defendants‟ motions to dismiss. On
October 11, 2013, the trial court entered a “Final Order” granting the motions and dismissing,
with prejudice, the claims asserted against the individual defendants.2 On January 13, 2014,
KDSH filed a motion for the trial court to compel mediation, which the trial court granted in
an order dated February 28, 2014. The parties went through mediation, but it was
unsuccessful.

       On November 10, 2014, KDSH filed its motion for summary judgment. The trial
court heard the motion on December 17, 2014. At the hearing, Ms. Smith made an oral
motion for leave to amend her complaint. On January 28, 2015, the trial court entered an
order denying Ms. Smith‟s motion. That same day, the trial court entered an order granting
KDSH‟s motion for summary judgment. The trial court concluded that Ms. Smith could not
establish a prima facie case for her claims of retaliation under the Tennessee Public
Protection Act, the Tennessee Adult Protection Act, and the common law. The trial court
also concluded that Ms. Smith‟s claims of tortious interference with at-will employment,
intentional infliction of emotional distress, and negligent hiring, retention, and supervision
were barred by the applicable statute of limitations. The trial court also concluded that Ms.
Smith could not establish a prima facie case for those claims. Appellant filed her Notice of
Appeal on February 26, 2015.

                                              II. Issues

We restate the issues raised by Appellant as follows:

   I. Whether the trial court properly granted the individual defendants‟ motions to
          dismiss.
   II. Whether the trial court admitted hearsay evidence, thereby violating Appellant‟s Sixth
          Amendment rights in granting the motion for summary judgment.
   III. Whether the trial court erred when it did not grant Appellant‟s motion for leave to
          amend her complaint.


       2
          Pursuant to Tennessee Rule of Civil Procedure 54.02, the trial court determined there was
no just reason for delay and directed entry of the order granting the individual defendants‟ motions to
dismiss as a final judgment which triggered the thirty-day time limit for filing a notice of appeal.
                                                  3
                                  III. Standard of Review

       We review the trial court's ruling on a motion for summary judgment de novo, with no
presumption of correctness. Abshure v. Methodist Healthcare-Memphis Hosps., 325 S.W.3d
98, 103 (Tenn. 2010). In doing so, we must make a fresh determination of whether the
requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.
Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013). Summary judgment is appropriate
when “the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The
moving party has the ultimate burden of persuading the court that there are no genuine issues
of material fact and that it is entitled to judgment as a matter of law. Town of Crossville
Hous. Auth. v. Murphy, 465 S.W.3d 574, 578 (Tenn. Ct. App. 2014) (citing Byrd v. Hall,
847 S.W.2d 208, 215 (Tenn.1993)). “If the moving party makes a properly supported motion
for summary judgment, the burden of production shifts to the nonmoving party to
demonstrate the existence of a genuine issue of material fact requiring trial.” Id. (citing Byrd,
847 S.W.2d at 215).

         When the moving party does not bear the burden of proof at trial, the moving party
may make the required showing and shift the burden of production either “(1) by
affirmatively negating an essential element of the nonmoving party's claim or (2) by
demonstrating that the nonmoving party's evidence at the summary judgment stage is
insufficient to establish the nonmoving party's claim or defense.” Rye v. Women's Care Ctr.
of Memphis, MPLLC, –– S.W.3d ––, No. W2013-00804-SC-R11-CV, 2015 WL 6457768, at
*22 (Tenn. Oct. 26, 2015). However, “a moving party seeking summary judgment by
attacking the nonmoving party's evidence must do more than make a conclusory assertion
that summary judgment is appropriate on this basis.” Id. Rule 56.03 requires that the moving
party support its motion with “a separate concise statement of the material facts as to which
the moving party contends there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. Each
fact is to be set forth in a separate, numbered paragraph and supported by a specific citation
to the record. Id. If the moving party fails to meet its initial burden of production, the
nonmoving party's burden is not triggered, and the court should dismiss the motion for
summary judgment. Town of Crossville Hous. Auth., 465 S.W.3d at 578–79 (citing Martin
v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008)).

        If the moving party does satisfy its initial burden of production, “the nonmoving party
„may not rest upon the mere allegations or denials of [its] pleading,‟ but must respond, and by
affidavits or one of the other means provided in Tennessee Rule 56, „set forth specific facts'
at the summary judgment stage „showing that there is a genuine issue for trial.‟ ” Rye, 2015
WL 6457768, at *22 (quoting Tenn. R. Civ. P. 56.06). The nonmoving party must
                                                 4
demonstrate the existence of specific facts in the record that could lead a rational trier of fact
to find in favor of the nonmoving party. Id. If adequate time for discovery has been provided
and the nonmoving party's evidence at the summary judgment stage is insufficient to
establish the existence of a genuine issue of material fact for trial, then the motion for
summary judgment should be granted. Id. Thus, even where the determinative issue is
ordinarily a question of fact for the jury, summary judgment is still appropriate if the
evidence is uncontroverted and the facts and inferences to be drawn therefrom make it clear
that reasonable persons must agree on the proper outcome or draw only one conclusion.
White v. Lawrence, 975 S.W.2d 525, 529–30 (Tenn.1998).

                                         IV. Analysis

        We recognize at the outset that Appellant is a pro se litigant. Pro se litigants are
entitled to fair and equal treatment by the courts. See Hessmer v. Hessmer, 138 S.W.3d 901,
903 (Tenn. Ct. App. 2003). While we take into account that Ms. Smith has no formal legal
training, we must “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.” Id. “Even though the courts cannot create claims or defenses for pro
se litigants where none exist, they should give effect to the substance, rather than the form or
terminology, of a pro se litigant‟s papers.” Id. at 904 (internal citations omitted).

                                    A. Motions to Dismiss

        Appellant argues that the trial court erred in granting the individual defendants‟
motions to dismiss. Specifically, Appellant argues that the motions to dismiss did not comply
with Tennessee Rule of Civil Procedure 7.02(1). Appellant also argues that the trial court
erred when it “impermissibly converted” the individual defendants‟ motions to dismiss under
Tennessee Rule of Civil Procedure 12.02(6) into motions for summary judgment under
Tennessee Rule of Civil Procedure 56.04. Appellee contends that the Appellant‟s appeal on
this issue is untimely and, therefore, this Court lacks jurisdiction to review this issue. In her
reply brief, Appellant concedes that her appeal of the trial court‟s grant of the motions to
dismiss is untimely.

       Despite her admission that her appeal on this issue is untimely, Appellant argues that
this Court retains jurisdiction to determine whether the motions to dismiss were granted using
“credible and legitimate” evidence. Appellant cites no authority for this proposition.
Because the evidence that Appellant considers “illegitimate” was not before the trial court
when the motions to dismiss were made or granted, it appears Appellant has conflated the
grant of the motions to dismiss with the later grant of Appellee‟s motion for summary
                                               5
judgment. The individual defendants‟ motions to dismiss were filed on February 7, 2013.
The trial court granted these motions in an order dated October 11, 2013 and certified the
order as a final judgment that same day. The affidavit of which Appellant now complains in
regards to the motions to dismiss was introduced into the record on November 10, 2014,
which is well after thirty days of entry of the order granting the motions to dismiss.
Appellant‟s appeal was filed on February 26, 2015.

       Tennessee Rule of Appellate Procedure 4(a) mandates that “[i]n an appeal as of right
to the Supreme Court, Court of Appeals, or Court of Criminal Appeals, 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….” “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). Appellant concedes her appeal of the motions to dismiss is untimely. While
the courts will afford pro se litigants some leeway, we must hold pro se litigants to the same
procedural rules as all other litigants. Hessmer, 138 S.W.3d at 903. The untimeliness of
Appellant‟s appeal of the trial court‟s grant of the motions to dismiss deprives this Court of
appellate jurisdiction, and, therefore, we cannot review the issue of whether the trial court
erred in granting the individual defendants‟ motions to dismiss.

               B. Hearsay Evidence and Motion for Summary Judgment

       In her brief, Appellant lists numerous issues asserting that the trial court erroneously
considered a hearsay statement in deciding the motion for summary judgment. While
Appellant raises six issues concerning hearsay evidence in her brief, in reality she has raised
a single issue and made multiple arguments as to why a hearsay statement should not have
been considered by the trial court. The evidence Appellant challenges is a statement made by
Ronald Arrison, the Executive Director of KDSH. Mr. Arrison‟s statement was introduced in
an affidavit attached to the Appellee‟s memorandum of law in support of its motion for
summary judgment. In his affidavit, Mr. Arrison states that “[i]f Ms. Smith had not
intentionally concealed her termination for patient abuse at Cordova Rehabilitation, [KDSH]
would not have hired her. Additionally, upon learning of Ms. Smith‟s intentional
concealment of such vital information, [KDSH] would have terminated her.” Appellant
essentially argues that this statement amounts to hearsay and, therefore, should not have been
before the trial court for consideration.3 Appellant also argues that because this statement
came before the trial court, her Sixth Amendment rights were violated. Appellee argues that
Appellant cannot appeal this issue because she did not object to the evidence at the trial level.

       3
        In her brief, Appellant acknowledges that she was terminated by Cordova Rehabilitation
based on patient abuse allegations, but states that the allegations were “unfounded, unsubstantial,
uncharged, unindicted.”
                                                6
 Appellee also argues that the trial court did not rely on Mr. Arrison‟s statement in deciding
the motion for summary judgment because there is no mention of the affidavit in the order
granting summary judgment.

        Appellant‟s brief gives the distinct impression that Appellant believes that Mr.
Arrison‟s affidavit prejudiced the trial court because it resulted in her being formally accused
of the crime of patient abuse, from which she did not have a chance to defend herself. Based
upon this belief, Appellant argues that her Sixth Amendment rights were violated. However,
as Appellant repeatedly points out in her brief, she has not been accused, indicted, tried, or
convicted of the crime of abuse. This case is not a criminal proceeding. “„[A] defendant is
not entitled to the constitution safeguards in a civil case that he has a right to in a criminal
case.‟” Thornburgh v. Thornburgh, 937 S.W.2d 925, 926 (Tenn. Ct. App. 1996)(quoting
Everhart v. State, 563 S.W.2d 795 (Tenn. Crim. App. 1978)). See also U. S. CONST. amend.
VI (“In all criminal cases, the accused shall enjoy the right…to be confronted with the
witnesses against him.”)(emphasis added); Hannah v. Larche, 363 U.S. 420 n. 16 (1960).
Therefore, her argument attacking the trial court‟s grant of summary judgment on Sixth
Amendment grounds is without merit. We also note from our review of the trial court‟s order
that the Mr. Arrison‟s affidavit was not relied on by the trial court in reaching its decision on
the motion for summary judgment.

        We further note that, our review of the record does not show where Appellant raised
the issue of the affidavit‟s admissibility in the trial court. Because Appellant is acting pro se,
we have addressed this issue. However, an “issue not raised before the trial court may not be
raised for the first time on appeal.” In re Estate of Smallman, 398 S.W.3d 134, 148 (Tenn.
2013) (citing Correll v. E.I. DuPont de Nemours & Co., 207 S.W.3d 751, 757 (Tenn.
2006)). Therefore, even if Appellant‟s argument did have some merit, the issue is waived.

                                    C. Amending the Complaint

        Although not specifically set forth as an issue in her brief, Appellant challenges the
trial court‟s decision denying her motion for leave to amend her complaint a second time.4
Appellant argues that the trial court erred because she was denied the opportunity to plead
additional facts that would have altered the outcome of the summary judgment motion.
Appellee argues that the trial court did not abuse its discretion in denying the Appellant‟s
motion to amend because the amendment sought would have been futile in light of the
motion for summary judgment.

        4
           We reiterate that we “give effect to the substance, rather than the form or terminology, of a pro se
litigant‟s papers.” Hessmer, 138 S.W.3d at 903. Because we afford pro se litigants this leeway, we address
this issue even though Appellant did not specifically enumerate it in her brief.
                                                      7
       “Trial courts have broad authority to decide motions to amend pleadings and will not
be reversed absent an abuse of discretion.” Pratcher v. Methodist Healthcare Memphis
Hosps., 407 S.W.3d 727, 741 (Tenn. 2013) (citing Hawkins v. Hart, 86 S.W.3d 522, 532
(Tenn. Ct. App. 2001)). “Under an abuse of discretion standard, an appellate court cannot
substitute its judgment for that of the trial court.” Id. (citing Williams v. Baptist Mem’l
Hosp., 193 S.W.3d 545, 551 (Tenn. 2006)). “Numerous factors guide a trial court‟s
discretionary decision whether to allow a late-filed amendment.” Id. “Some of these factors
include undue delay, bad faith by the moving party, repeated failure to cure deficiencies by
previous amendments and futility of the amendments.” Id. (citing Merriman v. Smith, 599
S.W.2d 548, 559 (Tenn. Ct. App. 1979)) (emphasis added).

       The trial court denied Appellant‟s motion to amend on the basis that the amendment
would be futile. The facts Appellant sought to add by the amendment would not affect the
outcome of the case in light of the following relevant findings made by the trial court in
granting the motion for summary judgment:

       1.     [Appellant] cannot establish a prima facie case of retaliation under the
          Tennessee Public Protection Act because she cannot show that she was
          terminated solely for reporting alleged illegal activity in light of her
          admission that she quit her job and failed to report to work in violation of
          the [KDSH]‟s No Call/No Show policy. The Court further finds that even
          if [Appellant] could establish a prima facie case of retaliation, Defendant
          had a legitimate, non-discriminatory reason for plaintiff‟s termination,
          which is the fact that [Appellant] quit her job and failed to call in or show
          up for work, and [Appellant] has failed to produce any evidence of pretext.
          […]
       2.     [Appellant] cannot establish a prima facie case of retaliation under
          Tennessee common law because she cannot establish that her alleged
          reporting or engagement in protected activity was a substantial factor in the
          decision to terminate her employment in light of her admission that she quit
          her job and failed to call in or show up for work in violation [of KDSH‟s]
          No Call/No Show policy. The Court further finds that even if [Appellant]
          could establish a prima facie case of retaliation, [Appellee] had a
          legitimate, non-discriminatory reason for [Appellant]‟s termination, which
          is the fact that [Appellant] quit her job and failed to call in or show up for
          work, and [Appellant] has failed to produce any evidence of pretext. […]
       3.     [Appellant] cannot establish a prima facie case of retaliation under the
          Tennessee Adult Protection Act because she cannot establish that there was
          a detrimental change in her employment due to alleged reporting of patient
          abuse in light of her admission that she quit her job and failed to call in or
                                               8
           show up for work in violation of [KDSH]‟s No Call/No Show policy.
           [Appellee] had a legitimate, non-discriminatory reason for [Appellant]‟s
           termination, which is the fact that [Appellant] quit her job and failed to call
           in or show up for work, and [Appellant] has failed to produce any evidence
           of pretext. […]
        4.     Pursuant to Tennessee Code Annotated § 28-3-104, [Appellant]‟s claim
           for tortious interference with at-will employment is barred by the
           applicable statute of limitations. The Court also finds that [Appellant]
           cannot prevail against [Appellee] on her tortious interference with at-will
           employment claim because, as a matter of law, [Appellee] cannot interfere
           with its own employment relationship.
        5.     Pursuant to Tennessee Code Annotated § 28-3-104, [Appellant]‟s claim
           for intentional infliction of emotional distress is barred by the applicable
           statute of limitations because her claim accrued more than one year before
           she filed her lawsuit. The Court also finds that [Appellant] cannot
           establish the essential elements of her claim because she is unable to show
           that [KDSH‟s] behavior was outrageous, reckless or intentional.
        6.     Pursuant to Tennessee Code Annotated § 28-3-104, [Appellant]‟s claim
           for negligent hiring, retention, and supervision is barred by the applicable
           statute of limitations because her claim accrued more than one year before
           she filed her lawsuit.

Having reviewed the record and the trial court‟s findings,5 we conclude that the trial court did
not abuse its discretion in denying the motion to amend. We, therefore, affirm the trial
court‟s order denying Appellant‟s motion to amend her complaint, and we also affirm the
trial court‟s order granting the Appellee‟s motion for summary judgment. As found by the
trial court, the Appellant‟s claims are either time barred by the applicable statute of
limitations, or they fail because of Appellant‟s admission that she quit her job and failed to
show up for work in violation of Appellee‟s no call/no show policy.

                                               V. Conclusion

      For the reasons stated above, we affirm the trial court‟s judgment. The case is
remanded for such further proceedings as may be necessary and are consistent with this

        5
         Upon review of the record, we note that the trial court‟s order does not explicitly state when the
Appellant‟s claims accrued with regard to the tortious interference, intentional infliction of emotional distress,
and negligent hiring, supervision, and retention claims. From the record, Appellant‟s claims accrued on
December 21, 2011. Appellant‟s complaint was not filed until December 27, 2012, over a year after the claims
had accrued.
                                                        9
opinion. Costs of the appeal are assessed to the Appellant, Gail D. Smith. Because
Appellant is proceeding in forma pauperis in this appeal, execution may issue for costs if
necessary.



                                                _________________________________
                                                KENNY ARMSTRONG, JUDGE




                                           10
