                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs January 31, 2003

       VINCENT D. CARSON (CASON) v. RICHARD M. GILLELAND

                       Appeal from the Circuit Court for Wilson County
                           No. 11092    John Wootten, Jr., Judge


                   No. M2002-01082-COA-R3-CV - Filed August 29, 2003


This personal injury action by an undercover law enforcement officer resulted in judgment against
Appellant and two co-defendants. Appellant is an inmate with the Department of Corrections and
after filing a pro se answer to the complaint took no further action in defense and more than two
years after his answer was filed the case was heard in his absence and resulted in a judgment for
$5,000,000.00. Plaintiff appeals and we affirm the action of the trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S., and
PATRICIA J. COTTRELL, J., joined.

Vincent D. Carson, Clifton, Tennessee, Pro Se.

Gary Vandever, Lebanon, Tennessee, for the appellee, Richard. M. Gilleland.

                                            OPINION

       On January 7, 2000, Richard M. Gilleland filed suit against William L. Cason, Vincent
DeQuan Cason and Antonio Teran Seay, asserting that on January 7, 1999, while employed as an
undercover narcotics agent with the Tennessee Bureau of Investigation, he was assaulted by the three
defendants and during an ensuing scuffle was shot and severely wounded by the defendants, William
and Vincent Cason. He sought compensatory damages in the amount of $5,000,000.00 and
demanded a jury to try the case.

        On February 14, 2000, the defendant, Vincent D. Cason, filed, pro se, an answer denying the
allegations of the complaint. He made no demand for a jury.

        On December 20, 2001, the trial court entered an order setting the case for trial on April 4,
2002, beginning at 9:00 a.m. at the Wilson County Courthouse in Lebanon, Tennessee. A copy of
this order was served upon Vincent D. Cason at South Central Correctional Facility in Clifton,
Tennessee.
        The defendants, William L. Cason and Antonio Seay, never having answered the Complaint,
Plaintiff, on January 18, 2002, filed a Motion for Default Judgment against these two defendants.
This motion was granted on March 13, 2002, and default judgment was entered against them and the
case set for trial on the issue of damages on April 4, 2002.

       The cause was heard as scheduled on April 4, 2002 and following this hearing, the trial court
on April 15, 2002 entered the following order:

                This cause came on to be heard on the 4th day of April, 2002 on the
       Complaint as heretofore filed by the Plaintiff on January 7, 2000, the Default
       Judgment heretofore entered against the Defendants, William L. Cason and Antonio
       Teran Seay, on the 13th day of March, 2002 and the Court’s Order setting the matter
       for trial; and
                It further appearing to the Court that the Defendants, William Lonradus
       Cason, Vincent DeQuan Cason and Antonio Teran Seay, all received notice of the
       trial by Notice of the Court dated December 20, 2001, and it further appearing to the
       Court that the Defendant, Vincent DeQuan Cason, failed to appear and defend, and
       that the Plaintiff moved for Default Judgment against the Defendant, Vincent
       DeQuan Cason, which the Court granted and ORDERED that the Complaint be taken
       as confessed and that Judgment by Default be entered against the Defendant, Vincent
       DeQuan Cason.
                This cause then came on for trial before the Honorable John Wootten, Jr.,
       Judge, trial by jury being waived by the Plaintiff, and upon the testimony of the
       Plaintiff, Richard M. Gilleland, the Court FINDS and ORDERS that the Plaintiff
       shall have Judgment against the Defendants, Vincent DeQuan Cason, William L.
       Cason and Antonio Teran Seay, jointly and severally, for the sum of Five Million
       dollars ($5,000,000.00) and the costs of this cause for which let execution issue if
       necessary.

Defendant, Vincent D. Cason, pro se, timely appealed. The issue on appeal as asserted by the
appellant is “whether the trial court erred when it deprived the defendant of the right to trial by jury
and it entered a default judgment against the defendant.” Appellant succinctly states his case in his
brief:

                The defendant is an indigent pro se layman at law who believed that once his
        answer to the complaint lodged against him was filed, that the court would insure that
        he would be transported to court on orders from the court so that defendant would
        have a chance to answer the complaint against him at trial.
                However, an order to transport him to court was never issued by the court and
        as a result, on the day of trial, the plaintiff was allowed to waive the trial by jury and
        subsequent to the testimony of the plaintiff, an order that the plaintiff should have a
        Judgement against the defendant’s in the amount of Five Million dollars
        ($5,000,000.00) was entered by the Court. [sic]


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        This pro se defendant was proceeding in the case (or failing to proceed) under the mistaken
assumption that, after filing his answer, he need do nothing but wait for the trial court to send for him
and arrange for his physical presence at the trial. While Appellant has a right to reasonable and
meaningful access to the Court, like any other litigant, he must take some action to defend himself
rather than simply wait for the axe to fall. In this case, he filed an Answer but made no demand for
a jury, made no discovery request, never moved for a continuance, made no motion to be allowed
to attend the trial, made no motion to hold the case in abeyance until he was released from custody
and, in fact, did nothing at all.

         This Court has held:

                 A prisoner’s constitutional right of access to the courts does not encompass
         the right of the prisoner to appear personally in all instances and present his version
         of the facts. Stone v. Morris, 546 F.2d 730 (7th Cir. 1976). As long as the inmate
         and his counsel are afforded adequate opportunity to confer confidentially and to
         petition the court about matters in controversy, the right of access is satisfied. Id. at
         735. It is within the discretion of the court to determine whether an inmate shall
         attend court proceedings held in connection with an action initiated by the inmate.
         Id.
                 This Court is aware of no authority granting a prisoner defendant a right to
         be present in a civil matter. However, Tenn.Code Ann. § 41-21-304 is instructive in
         this regard. In pertinent part the statute provides as follows:

                  (a) In no civil case can a convict be removed from the penitentiary to
                  give personal attendance at court, but his testimony may be taken by
                  deposition, as in other case . . .

                 The court in Whisnant v. Byrd, supra,1 found the plaintiff’s limited right to
         personally appear in civil matters to be based upon certain provisions of the
         Tennessee Constitution as cited above. However, there appears to be no basis,
         constitutional or otherwise, to extend this right to party defendants. Accordingly, we
         opine that the current status of the law is that party defendants have no absolute right
         to be in attendance at the hearing of a civil matter.
                 This, in our opinion, would not prohibit a defendant from vigorously
         defending against a civil matter. His unavailability for hearings and trials would not
         prohibit him from presenting matters to the court on his behalf. His testimony, as
         well as that of other prisoner witnesses, may be presented by deposition in
         accordance with Tenn.Code Ann. § 41-21-304. Moreover, a prisoner defendant may
         engage counsel to represent him. As long as the prisoner defendant is afforded ample


         1
            Whisn ant v. Byrd, 525 S.W.2d 152 (Tenn. 1975) was overruled in part b y Sanjines v. Ortwein & Assoc.,P.C.,
984 S.W .2d 9 07 (Tenn. 19 98). Sanjines provides a more restrictive rather than less restrictive procedure in prisoner
plaintiff cases and is not relevant to the case at bar.

                                                         -3-
       opportunity to present his side of the controversy, there is no need for him to appear
       personally. See Stone v. Morris, supra. However, unlike the case of the prisoner
       plaintiff, it would be inappropriate to hold the matter in abeyance until the prisoner’s
       release from custody. If adequate opportunity to present a meaningful defense has
       been afforded, we see nothing to prohibit the court from proceeding with the matter
       in the absence of a prisoner defendant. To this end, we note that this decision of
       whether or not to allow a defendant-prisoner personally to appear in a civil trial
       against him is within the sound discretion of the trial court.
               A prisoner’s unavailability for hearings and trials is due to his conviction.
       We are unaware of any authorities giving compelling reasons to remove prisoners
       from their self-caused restrictions and proceed with the case as though they could
       proceed at will. See Seybold v. Milwaukee County Sheriff, 276 F.Supp. 484
       (E.D.Wis.1967).

State of Tennessee, Dept. of Children’s Services v. Winifred Lynn Moss, 1998 WL 122716 at * 4
(Tenn. Ct. App. 1998).

       Appellant further asserts that although he never demanded trial by jury, such demand was
made in the Complaint and that Plaintiff could not, without his consent thereafter, waive trial by jury
under T.R.C.P. Rule 38.05. Such is not the rule in Tennessee. Russell v. Hackett, 230 S.W.2d 191
(Tenn. 1950); Davis v. Ballard, 946 S.W.2d 816 (Tenn. Ct. App. 1996); Beal v. Doe, 987 S.W.2d
41 (Tenn. Ct. App. 1998).

        “Whatever may be the restrictions on implied waiver in federal courts and in other state
jurisdictions, it is clear that Tennessee still follows Russell v. Hackett, 190 Tenn. 381, 230 S.W.2d
191 (1950).” Beal v. Doe, 987 S.W.2d 41, 47 (Tenn. Ct. App. 1998).

       Russell v. Hackett and Davis v. Ballard both held that failure to appear at trial impliedly
waived trial by jury.

       Making all allowances possible for the pro se status of the incarcerated Appellant, he cannot
simply file an answer and then, for two years thereafter, do absolutely nothing to assert his rights by
means available to him (motions, depositions, interrogatories, etc.) and depend upon the court to
abandon its traditional role of impartiality by tipping the scales.

        The judgment of the trial court is in all respects affirmed and the case is remanded to the trial
court for such further proceedings as may be necessary. Costs of the cause are assessed to the
appellant.

                                                        ____________________________________
                                                        WILLIAM B. CAIN, JUDGE




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