               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                August 17, 2016 Session

DEBORAH LACY v. HCA TRISTAR HENDERSONVILLE HOSPITAL, ET
                          AL.

                  Appeal from the Circuit Court for Sumner County
                   No. 83CC12013CV1319 Joe Thompson, Judge
                      ___________________________________

               No. M2015-02217-COA-R3-CV – Filed August 25, 2016
                     ___________________________________


This appeal arises from an involuntary dismissal after the close of plaintiff’s proof under
Rule 41.02(2) of the Tennessee Rules of Civil Procedure. The pro se plaintiff submitted a
statement of the evidence, and the defendants objected, requesting that the statement of the
evidence be excluded from the record. The trial court sustained the objection and excluded
the statement of the evidence from the record. We vacate the order of dismissal and remand
for the trial court to make findings of fact. Because the trial court was required by the
Tennessee Rules of Appellate Procedure to approve a statement of the evidence, we also
remand for supplementation of the record.

  Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
                                    Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which RICHARD H. DINKINS,
J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Deborah Lacy, Madison, Tennessee, appellant, pro se.

Robert E. Boston and Paul Maxwell Smith III, Nashville, Tennessee, for the appellees,
Denise Dallenbach, James Smallwood, Darlene Malone, Beverly Simpson, Duane Edson
Harrison, Kim Wilburn, and Hendersonville Hospital Corporation.


                                        OPINION

      In November 2013, Deborah Lacy sued Hendersonville Hospital Corporation (the
“Hospital”) and Hospital employees Denise Dallenbach, Jim Smallwood, Darlene Malone,
Beverly Simpson, and Dr. Duane Edson Harrison in the Circuit Court for Sumner County,
Tennessee. Ms. Lacy alleged that she was struck multiple times by co-workers during her
employment as a phlebotomist at the Hospital. She sought both compensatory and punitive
damages.

       The Hospital moved for summary judgment. On July 17, 2015, the trial court granted
summary judgment, concluding that the Workers’ Compensation Law, Tennessee Code
Annotated §§ 50-6-101 to -921 (2014),1 represented Ms. Lacy’s sole remedy. The court also
designated the judgment as final. See Tenn. R. Civ. P. 54.02. Ms. Lacy did not file a timely
appeal from this judgment.

       The remaining parties proceeded to trial on November 5, 2015. Following the close of
Ms. Lacy’s proof, the remaining defendants (“Appellees”) moved for involuntary dismissal
of her claims. The court granted the motion, finding that Ms. Lacy “failed to present any
evidence of any type to support any award of damages for her claims of assault and battery.”
The court’s order included its conclusions of law, specifically that “Tennessee law requires
proof of causation and damages through competent testimony to be considered by the Court.”
From this decision, Ms. Lacy filed a timely notice of appeal.

                                               DISCUSSION

        As an initial matter, Appellees argue that Ms. Lacy “has ignored the Rules of
Appellate Procedure and her purported arguments should be deemed waived.” We agree that
Ms. Lacy’s brief does not meet the requirements of the Tennessee Rules of Appellate
Procedure. However, Ms. Lacy represents herself on appeal, as she did at trial. We give pro
se litigants a certain degree of leeway in their pleadings and, on appeal, their briefs.
Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). Further, the
appellate rules are to “be construed to secure the just, speedy, and inexpensive determination
of every proceeding on its merits.” Tenn. R. App. P. 1. In this instance, we find it
appropriate to relax the requirements of the appellate rules insofar as Ms. Lacy’s brief is
concerned. Id. 2.

                             SUFFICIENCY OF THE APPELLATE RECORD

       Although Ms. Lacy’s brief includes a section entitled “THE ISSUES PRESENTED,”
many of her issues are difficult to fully comprehend. We are able to determine that Ms. Lacy
assigns error to the trial court’s failure to approve a statement of the evidence.2 This issue
must be addressed first because it impacts Ms. Lacy’s right to appellate review.

        1
          Ms. Lacy’s alleged injuries occurred prior to the enactment of the Workers’ Compensation Reform
Act of 2013. See 2013 Tenn. Pub. Acts 767 (ch. 289).
        2
          Specifically, Ms. Lacy’s brief states, “Wheather [sic] the trial court erred in . . . not letting the
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        The appellant has the obligation to prepare a transcript “as is necessary to convey a
fair, accurate and complete account of what transpired with respect to those issues that are
the bases of appeal” or, absent that, a statement of the evidence. Id. 24(b), (c). If a statement
of the evidence is filed and the appellee files objections, “[a]ny differences regarding the
statement shall be settled as set forth in subdivision (e) of [Tennessee Rule of Appellate
Procedure 24].” Id. 24(c). Subdivision (e) of Tennessee Rule of Appellate Procedure 24
provides as follows:

        (e) Correction or Modification of the Record. If any matter properly
        includable is omitted from the record, is improperly included, or is misstated
        therein, the record may be corrected or modified to conform to the truth. Any
        differences regarding whether the record accurately discloses what occurred in
        the trial court shall be submitted to and settled by the trial court regardless of
        whether the record has been transmitted to the appellate court. Absent
        extraordinary circumstances, the determination of the trial court is conclusive.
        If necessary, the appellate or trial court may direct that a supplemental record
        be certified and transmitted.

Id. 24(e).

        Our Supreme Court interprets the trial court’s role in the resolution of differences in
the statement of the evidence as mandatory. Bellamy v. Cracker Barrel Old Country Store,
Inc., 302 S.W.3d 278, 281 (Tenn. 2009). Further, the Supreme Court reads subsections (c)
and (e) of Rule 24 together as requiring the trial judge to, not only rule on objections, but also
to “approve a single statement of the evidence. In so doing, [the trial judge] should require
counsel to consolidate into one instrument all of the uncontested portions of their respective
statements, together with the Court’s version of any contested matter.” Id. (quoting Vowell v.
Vowell, Lauderdale Eq. No. 2, 1988 WL 104692, at *1 (Tenn. Ct. App. Oct. 10, 1988)).

       From the record, we can glean that Ms. Lacy filed a statement of the evidence on
January 11, 2016. Appellees filed their objections, in which they pointed out various
deficiencies in the statement of the evidence. Appellees also requested that “the Court
exclude Appellant’s Statement of the Evidence in its entirety from the record on appeal.” On
February 2, 2016, the trial court entered an order granting Appellees’ requested relief, and as
a result, we do not have a statement of the evidence.

        When the requirements of subsections (c) and (e) of Rule 24 are unfulfilled and it
“frustrates a party’s right to have its case reviewed by the appellate courts, the party may be
entitled to a new trial as long as the trial court’s failure to act was not the fault of the party.”

Appellant [sic] Statement of evidence come over to the Appellate courts . . . .”
                                                     3
Id. at 282. The lack of a statement of the evidence here does frustrate the right of appellate
review because, in determining whether the trial court properly dismissed her case, we must
review Ms. Lacy’s proof. See Burton v. Warren Farmers Co-op., 129 S.W.3d 513, 520
(Tenn. Ct. App. 2002). Yet, we are mindful that the trial court did sustain all of Appellees’
objections to Ms. Lacy’s statement of the evidence, indicating that she did not comply with
the rules and bore some fault.3

        Under these circumstances, we remand and direct the trial court to resolve the parties’
conflicts concerning Ms. Lacy’s statement of the evidence, which may require ordering
Appellees to submit a competing statement of the evidence, and to certify and transmit a
proper supplemental record to this Court for resolution of the issues raised in this appeal. See
Tenn. R. App. P. 24(e); see also Bellamy, 302 S.W.3d at 282 (directing trial court to resolve
conflicts in competing statements of the evidence and to transmit a supplemental record to
the Court of Appeals). If neither party has submitted a statement of the evidence that, in the
trial court’s opinion, represents a fair, accurate, and complete account of what transpired in
the trial court, the trial court may give the parties an opportunity to correct the accuracy of
their statements or the trial court may prepare its own statement of the evidence.

                             SUFFICIENCY OF THE ORDER OF DISMISSAL

       In the interest of judicial economy, we also address the trial court’s order granting
Appellees’ motion to dismiss. An involuntary dismissal under Tennessee Rule of Civil
Procedure 41.02(2) is appropriate “if, based on the law and the evidence, the plaintiff failed
to demonstrate a right to the relief sought.” Shore v. Maple Lane Farms, LLC, 411 S.W.3d
405, 413 (Tenn. 2013). In granting a motion for involuntary dismissal, the court must “find
the facts specially and . . . state separately its conclusions of law.” Tenn. R. Civ. P. 41.02(2).

       In this case, although the trial court stated its conclusions of law, the order of
dismissal omits any factual findings. The order states that Ms. Lacy testified and that her
claims sounded in tort, namely assault and battery, and that she failed to present proof of
causation and damages. Here, we would expect findings of fact that support the trial court’s
conclusion that Ms. Lacy’s claims sounded only in tort and did not include declaratory or
injunctive relief as requested in her amended complaint. Such findings are necessary so that
we can perform our review. See Shore, 411 S.W.3d at 414 (In reviewing a trial court’s
decision to grant an involuntary dismissal under Tennessee Rule of Civil Procedure 41.02(2),
“we must review the record de novo, presuming that the trial court’s factual findings are
        3
           We are not unmindful of the circumstances faced by the trial court. As we have previously stated:
“Conducting litigation involving a pro se litigant can be difficult and challenging. On one hand, a trial judge
must accommodate the pro se litigant’s legal naivete, and, on the other hand, he must not allow the pro se
litigant an unfair advantage because the litigant represents himself.” Irvin v. City of Clarksville, 767 S.W.2d
649, 651-52 (Tenn. Ct. App. 1988).

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correct unless the evidence preponderates otherwise.”). Given our resolution of the issue
concerning the statement of the evidence, we conclude a remand to permit the trial court to
make the necessary findings required by Tennessee Rule of Civil Procedure 41.02(2) is the
appropriate remedy.

                                        CONCLUSION

        We vacate the order of dismissal and remand for appropriate factual findings based on
the trial court’s evaluation of the evidence presented by Ms. Lacy at trial on November 5,
2015 and, if necessary, any appropriate conclusions of law. We also remand for the trial
court to resolve the parties’ conflicts concerning Ms. Lacy’s statement of the evidence and to
certify and transmit a proper supplemental record to this Court for resolution of the issues
raised by Ms. Lacy in this appeal.



                                                  _________________________________
                                                  W. NEAL MCBRAYER, JUDGE




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