                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                               Assigned on Briefs May 19, 2006

                     ANDRE L. DOTSON v. CITY OF MEMPHIS

                      An Appeal from the Circuit Court for Shelby County
                        No. CT-005007-04     Karen R. Williams, Judge



                    No. W2005-01602-COA-R3-CV - Filed October 25, 2006


This is an appeal from the dismissal of an inmate’s civil action for failure to pay costs in prior
lawsuits. The plaintiff inmate, proceeding pro se, filed a complaint in the trial court against the
defendant municipality alleging violations of the government tort liability act, proceeding as a
pauper. The City filed a motion to dismiss the case based on Tennessee Code Annotated §
41-21-812, because the plaintiff had failed to pay costs in previous lawsuits filed by him. Realizing
that his lawsuit was subject to dismissal under the statute, the plaintiff then paid the initial filing fee
and cash bond for the instant lawsuit, but did not pay the costs for the prior lawsuits. The plaintiff
subsequently filed a response to the City’s motion to dismiss, claiming that, although he initially was
prohibited from filing the lawsuit, because he subsequently paid his filing fees for the instant lawsuit,
Section 41-21-812 was not applicable. The trial court dismissed the case pursuant to the statute.
The plaintiff now appeals. We affirm.

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

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Andre L. Dotson, appellant, pro se.

Fred E. Jones, Jr., Memphis, Tennessee, for the appellee, City of Memphis.
                                        MEMORANDUM OPINION1

        Plaintiff/Appellant Andre L. Dotson (“Dotson”) is an inmate in a Shelby County prison. On
August 31, 2004, Dotson filed a complaint for damages in the trial court below against the
Defendant/Appellee City of Memphis (“the City”) pursuant to the Government Tort Liability Act
of the State of Tennessee, Tennessee Code Annotated § 29-20-101 et seq. On September 21, 2004,
Dotson filed a sworn affidavit of indigence, claiming that, due to his poverty, he was “unable to bear
the expense of this cause . . . .” On October 29, 2004, Dotson filed a motion seeking appointed
counsel, alleging that he was “unable to afford counsel.”

        On November 16, 2004, the City filed a motion to dismiss alleging, inter alia, that Dotson’s
complaint should be dismissed because Dotson had not paid outstanding court costs to the Shelby
County Circuit Court for costs assessed against him in previous litigation, and that his failure to pay
the costs assessed in the prior litigation barred this lawsuit pursuant to Tennessee Code Annotated
§ 41-21-812.

         On November 29, 2004, realizing that his lawsuit was subject to dismissal under the statute,
Dotson paid the initial filing fee of $138.50 and the required cash bond of $150 for the instant
litigation. He paid no costs associated with his prior litigation. On February 10, 2005, Dotson filed
a response to the City’s motion to dismiss. In his response, Dotson admitted that section 41-21-812
prohibited him from filing this lawsuit. However, he claimed that he was unaware of the prohibition
in the statute when he filed this lawsuit, and asserted that, because he later came into “good standards
with the Courts” by paying his filing fees in this lawsuit, the City’s motion to dismiss should be
denied. He argued that, because the clerk of the trial court erroneously accepted his complaint
through excusable neglect, his action should be allowed to proceed.

         On March 2, 2005, the trial court conducted a hearing. At the conclusion of the hearing, the
trial court determined that Dotson owed $1,073 in outstanding fees, costs, and expenses from
previous litigation and granted Dotson thirty (30) days from the date of the hearing to pay the debt
in full. On March 21, 2005, Dotson filed a motion to enlarge the time in which he would be
permitted to pay his outstanding court costs. On April 6, 2005, the trial court entered an order
dismissing Dotson’s complaint based on his failure to pay the outstanding court costs. On May 9,
2004, Dotson filed a motion to alter or amend the trial court’s order, including an additional request
for more time to pay his debt. On July 12, 2005, the trial court entered an order denying Dotson’s
motion to alter or amend and denying his motion for an enlargement of time. Dotson now appeals
the trial court’s decision.


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee 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. W hen 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.

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        We review the trial court’s factual findings de novo on the record, presuming those findings
to be correct unless the evidence preponderates otherwise. T.R.A.P. 13(d); Farnsworth v. Kenya,
No. W2001-00961-COA-R3-CV, 2002 WL 54392, at *2 (Tenn. Ct. App. Jan. 9, 2002). We review
issues of law de novo, with no presumption of correctness in the trial court’s decision. Farnsworth,
2002 WL 54392, at *2.

       Dotson’s complaint was dismissed pursuant to section 41-21-812. That statute provides:

       (a) Except as provided by subsection (b), on notice of assessment of any fees, taxes,
       costs and expenses under this part, a clerk of a court may not accept for filing another
       claim by the same inmate until such prior fees, taxes, costs and other expenses are
       paid in full.
       (b) A court may allow an inmate who has not paid any costs or expenses assessed
       against the inmate to file a claim for injunctive relief seeking to enjoin an act or
       failure to act that creates a substantial threat of irreparable injury or serious physical
       harm to the inmate.

T.C.A. § 41-21-812 (2003). If a clerk erroneously accepts for filing a claim to which this statute
applies, the trial court is authorized to dismiss the case under the statute. See Davis v. Holland, 31
S.W.3d 574, 578 (Tenn. Ct. App. 2000).

        On appeal, Dotson argues that the trial court erred in dismissing his complaint for failure to
pay court costs pursuant to the statute, because he should not be held responsible for the excusable
neglect of the court clerk in accepting his complaint for filing. He contends that, because he paid
his court costs after the City filed its motion to dismiss, the statute was no longer applicable to him
since his claim was no longer filed as an indigent. He claims that the trial court showed prejudice
against him by denying his motion to enlarge the time in which he could pay his outstanding court
costs, maintaining that such requests should be liberally granted when the request is made before the
time allotted has expired. He implies that denying him such additional time violated his
constitutional right to access to the courts.

         We recognize that section 41-21-812 applies only to cases in which “an affidavit of inability
to pay costs is filed with the claim by the inmate.” See T.C.A. § 41-21-802 (2003). Dotson initially
filed a sworn affidavit of indigence when he filed his claim. Later, however, he paid the full filing
fee and bond costs. He argues that, by belatedly paying his filing fees, the statute no longer applied
to him, and this lawsuit should be allowed to proceed regardless of his outstanding costs in the prior
lawsuits.

        We need not decide whether Section 41-21-812 would be applicable if Dotson had originally
paid his filing fees in this lawsuit and had not filed an affidavit of indigence. See Sweatt v. TDOC,
99 S.W.3d 112, 115 (Tenn. Ct. App. 2002). That is not the situation in the present case. Here,
Dotson filed an affidavit of indigence, making a sworn statement to the trial court that he was unable
to pay the costs of his lawsuit. He did not retract that affidavit; rather, he quickly overcame his


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claimed indigence and paid his filing fees upon being informed that his lawsuit could be dismissed
under the statute. Dotson should not be permitted to benefit from taking such inconsistent positions,
particularly when his actions were taken in an obvious attempt to manipulate the judicial process so
as to avoid his financial responsibilities to the court for the costs lawfully assessed against him in
prior litigation. “The rule is well established that during the course of litigation a party is not
permitted to assume or occupy inconsistent and contradictory positions, and while this rule is
frequently referred to as ‘judicial estoppel,’ it more properly is a rule which estops a party to play
fast-and-loose with the courts.” Cothron v. Scott, 446 S.W.2d 533, 535-36 (Tenn. Ct. App. 1969)
(quoting 31 C.J.S. Estoppel § 117, p. 623).

         As to his other assertions on appeal, Dotson cites no compelling authority in support of his
arguments. In the trial court and in his appellate brief, Dotson admits that initially he was prohibited
under section 41-21-812 from filing the instant lawsuit, but claims that the clerk’s excusable neglect
in accepting the complaint means that the statute should not apply. To the contrary, however, this
Court has held that the trial court is authorized to dismiss a lawsuit when it has been erroneously
filed by the trial court clerk under section 41-21-812. See Davis, 31 S.W.3d at 578. The bar under
this statute “applies to validly assessed unpaid costs from all prior cases, not only those found to be
malicious or frivolous.” Sweatt, 99 S.W.3d at 115. Regarding the trial court’s denial of Dotson’s
motion to enlarge the time allowed to pay the overdue court costs, we note that the statute contains
no provision allowing any time for making such payments. Rather, lawsuits filed in violation of the
statute may not be accepted, clearly indicating that the prior costs must be paid before filing
additional litigation. We see no error in the trial court’s denial of Dotson’s request for more time
to pay the prior costs.

      The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant
Andre L. Dotson, and his surety, for which execution may issue if necessary.




                                                        ___________________________________
                                                        HOLLY M. KIRBY, JUDGE




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