                                                                                             01/14/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                December 4, 2018 Session

           AMIR ESFANDYARI V. TINY’S CONSTRUCTION, LLC

                Appeal from the Chancery Court for Davidson County
                    No. 16-1158-III   Ellen H. Lyle, Chancellor


                             No. M2018-00395-COA-R3-CV


This appeal follows a jury trial in which the plaintiff was awarded a judgment of $9,950
for property damage caused by a construction company while demolishing a neighboring
structure. Plaintiff appeals taking issue with, inter alia, the jury’s finding that he was
comparatively at fault, the amount of the award, and opposing counsel’s closing
argument. Because the plaintiff failed to file a motion for a new trial in the trial court, the
plaintiff has waived any issue predicated upon error in “the admission or exclusion of
evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or
other action committed or occurring during the trial of the case[.]” Tenn. R. App. P. 3(e).
Moreover, because the plaintiff failed to provide this court with a transcript of the
evidence or a proper statement of the evidence relevant to any issue presented for review,
this court is precluded from considering the issues. See State v. Ballard, 855 S.W.2d 557,
561 (Tenn. 1993). Accordingly, the judgment of the trial court is affirmed.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.

Amir Esfandyari, Nashville, Tennessee, Pro Se.

Craig R. Allen, Chattanooga, Tennessee, and Christen C. Blackburn, Nashville,
Tennessee, for the appellee, Tiny’s Construction, LLC.
                                    MEMORANDUM OPINION1

        At all times relevant to this action Amir Esfandyari (“Plaintiff”) owned improved
property located at 340 White Bridge Road in Nashville, Tennessee where he operated
his retail business, an oriental rug gallery. On November 1, 2016, Plaintiff filed a pro se
complaint against Tiny’s Construction, LLC (“Defendant”) seeking compensation for
structural damage to his building. Plaintiff alleged that Defendant, while demolishing a
neighboring structure, caused structural damage to the building that caused it “to lean”
along with other damage. Defendant denied any liability and asserted a number of
defenses, including comparative fault and failure to mitigate damages. Defendant also
asserted that Plaintiff’s building was structurally unsound.

       Although Plaintiff was not represented by counsel when he filed the complaint,
Plaintiff was represented by counsel during the jury trial. After five days of testimony,
the jury returned a verdict in favor of Plaintiff and awarded damages in the amount of
$9,950. Shortly following trial, Plaintiff’s counsel withdrew, and Plaintiff, again acting
pro se, filed a timely notice of appeal.

                                               ANALYSIS

      Because Plaintiff is pro se on appeal, he is granted a certain amount of leeway;
however, we may not excuse him from complying with the same substantive and
procedural requirements as represented parties or shift the burden of litigating the case to
the courts or his adversary.2 Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct.
App. 2003).

        In this appeal, Plaintiff is challenging what occurred during and as a result of a
jury trial, but he is not asking for a new trial. Instead, he wants this court to re-examine


        1
            Tenn. Ct. App. R. 10 states:

        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
           Plaintiff filed the complaint pro se and represented himself for a period of time prior to trial.
Thereafter, Plaintiff was represented by counsel, Kevin Klein, who made a notice of appearance on
December 11, 2017. Attorney Klein represented Plaintiff for a short period of time prior to and during the
jury trial but was granted leave to withdraw on an expedited basis on February 28, 2018, which was
shortly after the completion of the jury trial. Thereafter, and while proceeding pro se, Plaintiff filed his
notice of appeal, prepared and filed his appellate brief, and represented himself at oral argument.


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the facts and documents and to allocate 100% of the fault to Defendant.3 We, however,
cannot re-try this case, as Plaintiff requests. As is explained in Duran v. Hyundai Motor
Am., Inc.:

        When appellate courts review the evidentiary foundation of a jury’s verdict
        regarding liability, they should keep in mind that the Constitution of
        Tennessee assigns this task to the jury. Appellate courts are not a jury of
        three with the prerogative to re-weigh the evidence, or to determine where
        the “truth” lies. Nor are they empowered to substitute their judgment for the
        jury’s, even if they conclude that the evidence might well have supported a
        different conclusion, or that the jury did not weigh the evidence well or that
        they would have reached a different conclusion had they been members of
        the jury.

271 S.W.3d 178, 204-05 (Tenn. Ct. App. 2008) (citations omitted).

        We are also precluded from considering other issues Plaintiff raises because he
failed to raise them in a motion for a new trial. For example, Plaintiff contends defense
counsel’s closing argument was “fraudulent.” He also contends the jury was biased
against Plaintiff because he is from Iran. We cannot consider these and the other issues
Plaintiff raises because, as Rule 3(e) of the Tennessee Rules of Appellate Procedure
states:

        In all cases tried by a jury, no issue presented for review shall be predicated
        upon error in the admission or exclusion of evidence, jury instructions
        granted or refused, misconduct of jurors, parties or counsel, or other action
        committed or occurring during the trial of the case, or other ground upon
        which a new trial is sought, unless the same was specifically stated in a
        motion for a new trial; otherwise such issues will be treated as waived.

Plaintiff did not address these issues in a motion for new trial; therefore, the issues are
waived. Id.

      There is another reason we are unable to grant Plaintiff any relief. This is because
we do not have a transcript or a proper statement of the evidence to review. Plaintiff is
the appellant here, and the burden is on the appellant, Plaintiff, to provide us with a


        3
           Plaintiff concludes the Argument section of his appellate brief stating, “Because of what I
experienced with the jury, I am not asking for another jury trial. I have fate [sic] [in] our system and I
solely rely on [the] appellate court to re-examine the facts and documents and reverce [sic] the chancery
courts [sic] decision of defendants 55% guilty to 100%.”


                                                  -3-
transcript of the evidence or a statement of the evidence.4 Tenn. R. App. P. 24(b) & (c);
Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn. Ct. App. 1992). “The absence of either a
transcript or a statement of the evidence significantly ties the hands of the appellate
court.” Chandler v. Chandler, No. W2010–01503–COA–R3–CV, 2012 WL 2393698, at
*6 (Tenn. Ct. App. June 26, 2012). “Where the record is incomplete and does not contain
a transcript of the proceedings relevant to an issue presented for review, . . . an appellate
court is precluded from considering the issue.” Ballard, 855 S.W.2d at 560–61.

        For the foregoing reasons, we affirm the judgment of the trial court.

                                            IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Amir Esfandyari.


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




        4
           The purported “Statement of the Evidence” submitted by Plaintiff does not summarize the
testimony at trial as Tenn. R. App. P. 24(c) requires. Moreover, it was not filed with the trial court as the
rule requires. Id. Thus, we may not consider the proffered statement of the evidence or any arguments
contained therein.


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