                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    JUNE 21, 2006 Session

                      MICHELE SAFA v. MARTHA A. LOVING

                   Direct Appeal from the Circuit Court for Shelby County
                       No. CT-006911-04     Karen R.Williams, Judge



                      No. W2005-01011-COA-R3-CV - Filed July 31, 2006


This appeal stems from a negligence suit arising from an automobile accident. At trial, the circuit
court entered two separate orders dismissing the case. One order dismissed the case based on the
statute of limitations. The other order dismissed the case for a failure to prosecute based on the
plaintiff’s failure to comply with a previous court order awarding discretionary costs to the defendant
that was granted when the plaintiff voluntarily dismissed her first filing of the instant suit. On
appeal, the plaintiff asserts that the circuit court erred when it dismissed her claims because the
applicable statute of limitations was tolled pursuant to section 28-1-106 of the Tennessee Code as
she was of “unsound mind.” The defendant has also asserted that the circuit court properly
dismissed the case for a failure to prosecute based on the plaintiff’s failure to comply with a court
order. We affirm.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Michele F. Safa, Memphis, TN, pro se

Kevin D. Bernstein, Memphis, TN, for Appellee
                                       MEMORANDUM OPINION1

                                   I. FACTS & PROCEDURAL HISTORY

        In 1993, Dr. Michele Safa (“Safa” or “Appellant”) filed suit against Martha A. Loving
(“Loving” or “Appellee”) seeking damages arising from an automobile accident. On November 7,
2003, Safa voluntarily dismissed her claims. Subsequently, Loving filed a motion for discretionary
costs, which was granted by the circuit court on November 23, 2003.

         On December 7, 2004, Safa, acting pro se, re-filed her complaint. In her re-filed complaint,
Safa asserted that she was rendered incompetent because of a medical condition after filing her
voluntary dismissal, which she asserted tolled the applicable statute of limitations. Loving filed a
motion to dismiss stating that Safa had filed her complaint beyond the statute of limitations. Loving
also filed a motion to enforce a previous order by the circuit court awarding discretionary costs from
the first suit. In regards to Loving’s motion to enforce the previous order awarding discretionary
costs, on January 14, 2005, the circuit court found that Safa failed to pay Loving for the discretionary
costs from the previous suit and ordered that she do so within thirty days. The circuit court stated
that it would dismiss her complaint for failure to prosecute if she failed to do so. On February 11,
2005, the circuit court granted Safa until March 21, 2005 to “procure counsel and respond to
[Loving’s] Motion to Dismiss and the previously filed Motion to Enforce Previous Order of Court
Allowing Costs and the Order granting said Motion.” On March 28, 2005, the circuit court entered
two orders. One order granted Loving’s motion to dismiss. The other order dismissed Safa’s claims
for failure to prosecute because Safa had not complied with the circuit court’s order requiring her
to comply with its prior order awarding discretionary costs within the allotted time period.

                                           II. ISSUES PRESENTED

        Appellant, acting pro se, has timely filed her notice of appeal and presents the following issue
for review:

1.      Whether the circuit court properly dismissed Appellant’s claims as being filed past the
        applicable statute of limitations.

Additionally, Appellee has presented one additional issue for review:


        1
           Rule 10 of the Rules of the Court of Appeals of Tennessee governs the issuance of Memorandum Opinions,
which 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 “M EMORANDUM OPINION,” shall
                 not be published, and shall not be cited or relied on for any reason in any unrelated
                 case.


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2.      Whether the circuit court properly dismissed Appellant’s claims for failure to prosecute due
        to Appellant’s failure to comply with a court order.

For the following reasons, we affirm the decision of the circuit court.

                                          III.   DISCUSSION

         Before this Court analyzes the issues presented in this appeal, we note that Appellant is acting
pro se and that this Court is mindful of this when evaluating those issues. “Pro se litigants who
invoke the complex and sometimes technical procedures of the courts assume a very heavy burden.”
Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988) (citing Gray v. Stillman
White Co., 522 A.2d 737, 741 (R.I. 1987)). “Pro se litigants are entitled to fair and equal treatment.”
Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000) (citing Childs v.
Duckworth, 705 F.2d 915 (7th Cir. 1983)). “Pro se litigants are entitled to the same liberality of
construction with regard to their pleadings that Tenn. R. Civ. P. 1, 8.05 & 8.06 afford any other
litigant.” Irvin, 767 S.W.2d at 652 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Although
“courts give pro se litigants who are untrained in the law a certain amount of leeway in drafting their
pleadings and briefs,” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003) (citing Whitaker,
32 S.W.3d at 227; Paehler v. Union Planters Nat’l Bank, 971 S.W.2d 393, 397 (Tenn. Ct. App.
1997)), “[p]ro se litigants are not excused from complying with the same substantive and procedural
requirements that other represented parties must adhere to,” Whitaker, 32 S.W.3d at 227 (citing
Irvin, 767 S.W.2d at 652).

         While Appellant has asserted that her claims should not have been dismissed based on the
applicable statute of limitations, we find it unnecessary to discuss this issue because we find that the
circuit court properly dismissed Appellant’s claims for a failure to prosecute based on Appellant’s
failure to comply with a court order.

        Rule 41.02 of the Tennessee Rules of Civil Procedure states in pertinent part: “For failure
of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may
move for dismissal of an action or of any claim against the defendant.” Tenn. R. Civ. P. 41.02(1)
(2005). This Court reviews a motion to dismiss a complaint pursuant to rule 41.02(1) of the
Tennessee Rules of Civil Procedure under an abuse of discretion standard. See Stalsworth v.
Grummon, No. M2000-02352-COA-R3-CV, 2001 Tenn. App. LEXIS 352, at *8 (Tenn. Ct. App.
May 15, 2001) (citations omitted). Thus, this Court will uphold a motion to dismiss a complaint
pursuant to rule 41.02(1) of the Tennessee Rules of Civil Procedure unless the “trial court acted
unreasonably, arbitrarily, or unconscionably by dismissing the complaint.” Id. at *9 (citing Reynolds
v. Metro. Gov’t of Nashville & Davidson County, No. 01 A01-9059-CV-00406, 1996 Tenn. App.
LEXIS 106, at *4 (Tenn. Ct. App. Feb. 23, 1996)).

        In this case, after Appellant initially voluntarily dismissed her case, Appellee filed a motion
for discretionary costs, which was granted by the circuit court. When Appellant re-filed her case
over one year later, Appellant had not paid Appellee for the discretionary costs awarded to her. As


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a result, Appellee filed a motion to enforce its previous court order awarding her discretionary costs
requesting the circuit court to compel Appellant to abide by the previous order and/or dismiss
Appellant’s complaint. On January 14, 2005, the circuit court entered an order granting Appellee’s
motion stating that Appellant had thirty days by which to pay the discretionary costs. If Appellee
did not pay those costs, the circuit court stated that it would dismiss her claims for failure to
prosecute. On February 11, 2005, the circuit court granted Appellant’s request for additional time
to respond to Appellee’s motion to enforce the order granting discretionary costs and the order
granting the motion. On March 28, 2005, although the circuit court labeled its order as an order of
dismissal for failure to prosecute, the circuit court dismissed Appellant’s complaint for a “failure to
abide by the previously lawfully entered Order of [the] court.” In her brief on appeal, Appellant has
presented no defense as to why her complaint should not be dismissed for failure to comply with the
court order assessing discretionary costs. Further, the circuit court noted in its order granting
Appellee’s motion to dismiss that Appellant failed to respond and effectively defend against
Appellee’s motion to enforce the circuit court’s previous order awarding discretionary costs.

        In light of the facts and circumstances of this case, it appears that Appellant had ample time
to comply with the court’s order and had ample warning that her claims would be subject to
dismissal. As such, we conclude that the circuit court did not abuse its discretion when it dismissed
Appellant’s complaint as it did not act unreasonably, arbitrarily, or unconscionably. Stalsworth,
2001 Tenn. App. LEXIS 352, at * 10-11 (finding that trial court did not err by dismissing plaintiffs’
re-filed complaint for failure to pay discretionary costs from original suit that was voluntarily
dismissed where the plaintiffs’ had ample warning that their claims were subject to dismissal and
were given ample time to comply with the order directing them to pay the discretionary costs). Thus,
we affirm the decision of the circuit court.

                                         IV. CONCLUSION

       For the aforementioned reasons, we affirm the decision of the circuit court. Costs of this
appeal are taxed to Appellant, Michele F. Safa, and her surety, for which execution may issue if
necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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