                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                               Assigned on Briefs February 22, 2002

                SYLVESTER YOUNG v. LEAH LISA BARROW, ET AL.

                         Appeal from the Circuit Court for Davidson County
                           No. 00C-3514     Marietta M. Shipley, Judge


                     No. M2001-00876-COA-R3-CV - Filed September 16, 2003


This appeal arises out of a minor intersection accident. The complaints of the driver and passenger
of one of the motor vehicles against the driver of the second motor vehicle were consolidated in the
Circuit Court for Davidson County. The trial court granted a directed verdict against the plaintiff
driver at the close of the plaintiffs’ proof. Thereafter, the plaintiff driver filed a second lawsuit
against the defendant driver and her insurer. The trial court dismissed the second suit on the ground
of res judicata and granted the insurer’s motion for a judgment on the pleadings. The plaintiff driver
has perfected this appeal. We affirm the dismissal of his second complaint.

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

WILLIAM C. KOCH , JR ., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Sylvester Young, Nashville, Tennessee, Pro Se.

Scott A. Rhodes, Brentwood, Tennessee, for the appellees, Harrison Brothers Insurance and Leah
Barrow.

                                                   OPINION

                                                        I.

        On November 24, 1997, Leah Barrow became trapped behind a city bus as she drove north
on Gallatin Road in Nashville. She moved into the left lane to pass the bus, but, just as she reached
the front of the bus, the light at the intersection of Gallatin Road and Eastland Avenue turned yellow.
Ms. Barrow applied her brakes; however, her car slid into the intersection because of the wet
roadway. Her motor vehicle came into contact with the driver’s side bumper of a motor vehicle
being driven by Sylvester Young. Ms. Barrow stopped and provided her insurance information to
Mr. Young. She went on her way after observing that Mr. Young’s vehicle has sustained only minor
damage and that neither Mr. Young nor his three passengers1 appeared to be injured.



       1
           Linda Buford, Mr. Young’s fiancée, and two children were passengers in Mr. Young’s vehicle.
        Mr. Young and Ms. Buford retained a lawyer. On November 23, 1998, Mr. Young filed a
civil warrant in the Metropolitan General Sessions Court against Ms. Barrow seeking damages for
the personal injuries Mr. Young claimed to have sustained in the collision. This case was later
removed to the Circuit Court for Davidson County where it was consolidated with a separate lawsuit
Ms. Buford had filed against Ms. Barrow.

        The lawyer representing Mr. Young and Ms. Buford withdrew prior to trial, and Mr. Young
and Ms. Buford decided to represent themselves. The consolidated cases were tried to a jury on
November 14 and 15, 2000. Ms. Barrow conceded liability, and the proceeding focused only on the
question of damages. Ms. Barrow moved for a directed verdict at the close of the plaintiffs’ case.
The trial court granted the motion with regard to Mr. Young’s claim but permitted Ms. Buford’s case
to go to the jury. The jury determined that Ms. Buford had not been injured, and the trial court
entered a judgment on December 4, 2000 dismissing both claims. Neither Mr. Young nor Ms.
Buford appealed this judgment.

        On November 30, 2000, Mr. Young, still representing himself, filed another complaint
against Ms. Barrow and her insurance agent, Harrison Brothers Insurance. He recited in the
complaint that at a “static [sic] conference” held before the consolidated trial, the trial court had
instructed him to re-file his complaint because his former lawyer had failed to depose his physician
or to subpoena his medical records.

        Harrison Brothers Insurance filed an answer generally denying liability and a Tenn. R. Civ.
P. 12.03 motion for judgment on the pleadings. It pointed out that Mr. Young’s renewed complaint
did not mention Harrison Brothers Insurance except in its caption. For her part, Ms. Barrow filed
a Tenn. R. Civ. P. 56 motion asserting that she was entitled to a judgment as a matter of law because
Mr. Young’s claim against her had already been litigated. The trial court granted both motions, and
Mr. Young has appealed to this court.

                                         II.
                  STANDARDS FOR REVIEWING CLAIMS OF PRO SE LITIGANTS

        Parties who decide to represent themselves are entitled to fair and equal treatment by the
courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000); Paehler v. Union
Planters Nat'l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App. 1997). The courts should take into
account that many pro se litigants have no legal training and little familiarity with the judicial
system. Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). However, the
courts must also be mindful of the boundary between fairness to a pro se litigant and unfairness to
the pro se litigant’s adversary. Thus, the courts must not excuse pro se litigants from complying with
the same substantive and procedural rules that represented parties are expected to observe.
Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn. Ct. App.1996); Kaylor v. Bradley, 912 S.W.2d
728, 733 n.4 (Tenn. Ct. App. 1995).

        The courts give pro se litigants who are untrained in the law a certain amount of leeway in
drafting their pleadings and briefs. Whitaker v. Whirlpool Corp., 32 S.W.3d at 227; Paehler v.
Union Planters Nat’l Bank, Inc., 971 S.W.2d at 397. Accordingly, we measure the papers prepared


                                                 -2-
by pro se litigants using standards that are less stringent than those applied to papers prepared by
lawyers. Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S. Ct. 173, 176 (1980); Baxter v. Rose, 523 S.W.2d
930, 939 (Tenn. 1975); Winchester v. Little, 996 S.W.2d 818, 824 (Tenn. Ct. App. 1998).

         Pro se litigants should not be permitted to shift the burden of the litigation to the courts or
to their adversaries. They are, however, entitled to at least the same liberality of construction of their
pleadings that Tenn. R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Irvin v. City of
Clarksville, 767 S.W.2d at 652. Even though the courts cannot create claims or defenses for pro se
litigants where none exist, Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. Ct. App. 1994),
they should give effect to the substance, rather than the form or terminology, of a pro se litigant’s
papers. Brown v. City of Manchester, 722 S.W.2d 394, 397 (Tenn. Ct. App. 1986); Usrey v. Lewis,
553 S.W.2d 612, 614 (Tenn. Ct. App. 1977).

                                          III.
               MR . YOUNG’S CLAIMS AGAINST HARRISON BROTHERS INSURANCE

        We turn first to Mr. Young’s assertion that the trial court erred when it granted Harrison
Brothers Insurance a judgment on the pleadings. When reviewing orders granting a Tenn. R. Civ.
P. 12.03 motion, we use the same standard of review we use to review orders granting a Tenn. R.
Civ. P. 12.02(6) motion to dismiss for failure to state a claim. Waller v. Bryan, 16 S.W.3d 770, 773
(Tenn. Ct. App. 1999). Accordingly, we must review the trial court’s decision de novo without a
presumption of correctness, Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997), and
we must construe the complaint liberally in favor of the non-moving party and take all the factual
allegations in the complaint as true. We should uphold granting the motion only when it appears that
the plaintiff can prove no set of facts in support of a claim that will entitle him or her to relief.

        Harrison Brothers Insurance moved to dismiss the complaint or for a judgment on the
pleadings because Mr. Young’s pro se complaint contained no factual allegations regarding the
company. Indeed, the complaint did not even mention Harrison Brothers Insurance except in the
style of the case. In his response to the motion, Mr. Young faulted the company for paying the
lowest repair estimate. Nevertheless, he never alleged that Harrison Brothers Insurance breached
any duty it had by, for example, failing to pay enough to properly repair or replace the car. The bare
allegation that an insurer refused to pay the most exorbitant estimate does not state a claim on which
relief can be granted. Accordingly, the trial court did not err in granting judgment on the pleadings
in favor of Harrison Brothers Insurance.

                                            IV.
                          MR . YOUNG’S CLAIMS AGAINST MS. BARROW

        Mr. Young also asserts that the trial court erred by dismissing his renewed complaint because
he was not a party in the original proceeding. He concedes that he participated in the proceeding,
but he insists that he was only a witness for Ms. Buford. Now, he asserts that he wants his “day in
court.”




                                                   -3-
                                                   A.

        This issue implicates the doctrine of res judicata. Res judicata is a claim preclusion doctrine
that promotes finality in litigation. Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn.1976);
Jordan v. Johns, 168 Tenn. 525, 536-37, 79 S.W.2d 798, 802 (1935). It bars a second suit between
the same parties or their privies on the same cause of action with respect to all the issues which were
or could have been litigated in the former suit. Richardson v. Tennessee Bd. of Dentistry, 913
S.W.2d 446, 459 (Tenn.1995); Brown v. Brown, 29 S.W.3d 491, 495 (Tenn. Ct. App. 2000); Collins
v. Greene County Bank, 916 S.W.2d 941, 945 (Tenn. Ct. App.1995). In order for the doctrine of res
judicata to apply, the prior judgment must conclude the rights of the parties on the merits. Goeke
v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989); Lewis v. Muchmore, 26 S.W.3d 632, 637 (Tenn. Ct.
App. 2000).

        Parties asserting a res judicata defense must demonstrate (1) that a court of competent
jurisdiction rendered the prior judgment, (2) that the prior judgment was final and on the merits, (3)
that both proceedings involved the same parties or their privies, and (4) that both proceedings
involved the same cause of action. Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990). A prior
judgment or decree does not prohibit the later consideration of rights that had not accrued at the time
of the earlier proceeding or the reexamination of the same question between the same parties when
the facts have changed or new facts have occurred that have altered the legal rights and relations of
the parties. White v. White, 876 S.W.2d 837, 839-40 (Tenn.1994); State ex rel. Cihlar v. Crawford,
39 S.W.3d 172, 178 (Tenn. Ct. App. 2000).

        To be entitled to a summary judgment, Ms. Barrow must demonstrate that the undisputed
facts support finding (1) that Mr. Young was a party to the earlier proceeding, (2) that the two
proceedings involve the same cause of action, and (3) that the trial court in the earlier proceeding
entered a final judgment on the merits against Mr. Young. Despite Mr. Young’s confusion about
what was occurring at the first trial, there is no question that the undisputed record demonstrates that
Ms. Barrow made out her res judicata defense.

        Mr. Young’s principal argument is that the lawsuits do not involve the same parties because
he was never a party to the first proceeding. He insists that he dismissed his first lawsuit at the trial
court’s suggestion and that he was simply helping Ms. Buford. The record belies this claim. The
record demonstrates that Mr. Young was not merely a witness at the first trial.

        When jury selection commenced, the trial court informed the prospective jurors that the
“plaintiffs have chosen to represent themselves” and asked if any members of the panel knew either
Mr. Young or Ms. Buford because “they are the plaintiffs in this case; they’re the ones bringing the
lawsuit.” The court then offered both Mr. Young and Ms. Buford the opportunity to question the
prospective jurors. Both Mr. Young and Ms. Buford declined.

        After the jury had been seated, the trial court told Mr. Young and Ms. Buford to decide which
of them would deliver the opening statement and to decide the order in which they would present
their proof. The court explained that both of them could present witnesses on their own behalf but
that Mr. Young could not examine Ms. Buford because he did not represent her. Mr. Young asked


                                                  -4-
several questions about the evidence of damages that could be presented and then told the trial court
that he did not have any witnesses to offer.

        Mr. Young delivered the opening statement. He discussed the injuries that both he and Ms.
Buford claimed they had sustained as well as the damage to his vehicle. However, he also explained
that he had no role in the lawsuit:

               I’m not involved in the lawsuit; I’m not suing. It’s just that it was my
               car and I was driving. I never had any intention to sue ‘em. They
               paid me but they wouldn’t pay Ms. Buford. So bein’ they wouldn’t
               go to her rescue, it pulled me back in this suit. I’m just here tryin’ to
               be a catalyst between her and the insurance company. Otherwise, I
               wouldn’t be named in this lawsuit.

       Mr. Young then took the stand and testified in narrative form. He described the damage to
his vehicle and the physical ailments the wreck ostensibly caused him. Thereafter, the following
exchanges occurred:

               Mr. Young:              There were times when I wanted to file a suit
                                       myself. . . . [But] I didn’t sue.
               Trial Court:            Mr. Young, just so we’re very clear, presently
                                       you are listed as a plaintiff in this case.
               Mr. Young:              That’s correct.
               Trial Court:            So you have sued.
               Mr. Young:              I understand. I’m suing.
               Trial Court:            [T]o ensure the jury isn’t confused, you are
                                       listed as a plaintiff in this case.
               Mr. Young:              I am a plaintiff in this case. That’s correct.

                                              *   *     *

               Ms. Barrow’s
               Lawyer:                 This is the third lawsuit that you’ve had. . .

               Mr. Young:              I object your honor. It’s not a lawsuit; I didn’t
                                       sue nobody.

               Trial Court:            We’ve already straightened out that you’re a
                                       plaintiff in this lawsuit.

               Mr. Young:              I know but he was talking [about a different
                                       wreck].




                                                  -5-
Finally, when Ms. Barrow’s attorney offered impeaching proof that a prior personal injury suit filed
by Mr. Young had been dismissed after a directed verdict, Mr. Young objected and asked: “Your
honor, what does that have to do with this part of the case – my personal case?”

       Mr. Young chose to represent himself even though the four-month continuance between his
former lawyer’s withdrawal and the trial date afforded him ample opportunity to obtain replacement
counsel. Mr. Young is left with the consequences of his choice. His active participation in the trial
and the quoted trial excerpts demonstrate that Mr. Young did not dismiss his lawsuit before trial.

         Mr. Young attempts to save his case by arguing alternatively that the trial court did not enter
a final judgment on the merits of his claim. He contends that he nonsuited his claim prior to the trial
court’s decision to direct a verdict dismissing his lawsuit. A party may nonsuit its case by filing a
written notice of dismissal prior to trial or by giving oral notice of dismissal in open court. Tenn.
R. Civ. P. 41.01(1). Mr. Young argues that his testimony provided oral notice of dismissal. Asked
if he was seeking damages by the trial court, Mr. Young stated, “I never did . . . I was angry.”2 This
response caused the trial court to inquire: “Are you dismissing your lawsuit against Ms. Barrow?”
Mr. Young answered: “Only if they come to terms with Ms. Buford. Like you say, you say this is
a lawsuit, I’m here because either they pay her or I’ve got to pay her and I don’t feel I should have
to pay her.”

        The voluntary dismissal rule was intended to establish a test that is easy to administer.
Winterland Concessions Co. v. Smith, 706 F.2d 793, 795 (7th Cir. 1983). Thus, the notice of
dismissal must demonstrate the plaintiff’s clear, unequivocal, and express intent to dismiss the
action.3 Kaufman & Broad Bldg. Co. v. City & Suburban Mortgage Co., 88 Cal. Rptr. 858, 861 (Cal.
Ct. App. 1970); Conkling v. Turner, 138 F.3d 577, 592 (5th Cir. 1998); 9 CHARLES A. WRIGHT ET
AL., FEDERAL PRACTICE AND PROCEDURE § 2363, at 269 (2d ed. 1994). A conditional statement
offering to dismiss a claim in return for action by the defendant is insufficient. McMahon v.
Televents, Inc., 129 F.3d 126, 1997 WL 678358, at *2 (9th Cir. Oct. 29, 1997) (unpublished table
decision). Accordingly, Mr. Young’s equivocal statements and conditional response to the trial court
did not provide effective notice of voluntary dismissal, and the trial court’s decision to direct a
verdict against him at the close of the plaintiffs’ proof is a final decision on the merits.4




         2
             Acco rding to the trial testimony, howeve r, he asked for $ 200,000 in his answe rs to interrogatories.

         3
           To this extent, providing no tice of vo luntary dismissal is similar to motion practice. See Tenn. R. Civ. P.
7.02(1); Da vis v. Tenne ssee D ep’t o f Em ployment Sec., 23 S.W .3d 30 4, 315 (Tenn . Ct. App. 1999) (motions must
sufficiently apprise the trial court of the relief sought so the court can process the motion correctly).

         4
           Mr. Young reacted to the directed verdict by calmly telling the trial court that he understood that he was no
longer a party to the lawsuit. The record indicates that he had filed at least one other lawsuit that had been dismissed
on directed verdict. Thus, even if we assume Mr. Young did not understand the import of the word s “directed verdict,”
he understood the effect of dismissal on his lawsuit. Despite his ambiguous statements regarding his intention of non-
suiting, once he had been dismissed, Mr. Young never asked how his claims could be dismissed when he was not before
the court. The trial court repeatedly info rmed Mr. Yo ung that he was bound by the pro cedural rules app licable to
lawyers. We cannot relieve him from those rules on appe al.

                                                              -6-
                                          V.
             FRIVOLOUS APPEAL DAMA GES UNDER TENN. CODE ANN . § 27-1-122 (2000)

        Ms. Barrow and Harrison Brothers Insurance ask this court to award them attorney’s fees on
the ground that this appeal was frivolous. We have determined that they are entitled to damages for
a frivolous appeal because Mr. Young apparently filed this appeal for the purpose of re-litigating
claims that had already been finally resolved.

       Parties should not be forced to bear the cost and vexation of baseless appeals. Davis v. Gulf
Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977); Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct.
App. 1999); McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989). Accordingly, in 1975,
the Tennessee General Assembly enacted Tenn. Code Ann. § 27-1-122 to enable appellate courts to
award damages against parties whose appeals are frivolous or are brought solely for the purpose of
delay. Determining whether to award these damages is a discretionary decision. Banks v. St. Francis
Hosp., 697 S.W.2d 340, 343 (Tenn.1985).

        A frivolous appeal is one that is devoid of merit, Combustion Eng’g, Inc. v. Kennedy, 562
S.W.2d 202, 205 (Tenn. 1978), or one that has no reasonable chance of succeeding. Davis v. Gulf
Ins. Group, 546 S.W.2d at 586; Jackson v. Aldridge, 6 S.W.3d at 504; Industrial Dev. Bd. v.
Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995). Thus, an appeal in which the reviewing
court’s ability to address the issues raised is undermined by the appellant’s failure to provide an
adequate record is deemed frivolous because it has no reasonable chance of succeeding. Brooks v.
United Uniform Co., 682 S.W.2d 913, 915 (Tenn. 1984); McDonald v. Onoh, 772 S.W.2d at 914;
Fields v. Fields, No. 86-131-II, 1987 WL 7332, *3 (Tenn. Ct. App. March 6, 1987) (No Tenn. R.
App. P. 11 application filed).

         Mr. Young’s appeal, although it was nominally an appeal from a subsequent lawsuit, raised
issues against Ms. Barrow solely related to a original trial that had concluded over four months prior
to his notice of appeal. As to Harrison Brothers Insurance, Mr. Young offered no factual allegations
in the trial court that would allow a court to conclude that he had stated a cause of action regarding
the company’s resolution of his insurance claim and he did no more than re-state his allegation to
this court. He failed to create any possibility that he would prevail in this court. Accordingly, this
appeal is frivolous, and Ms. Barrow and Harrison Brothers Insurance are entitled to the costs they
incurred in defending against it.

                                                            VI.

        Mr. Young also seeks to collaterally attack several of the trial court’s decisions during the
November 2000 trial even though he did not appeal from the judgment granting Ms. Barrow a
directed verdict.5 These claims are now beyond our reach because Mr. Young failed to file a timely
notice of appeal from the December 4, 2000 judgment.


         5
          Mr. Young insists that the trial court erred by (1) granting Ms. Barrow’s motion for directed verdict, (2)
permitting his lawyer to withdraw, (3 ) failing to ho ld a status conference prior to the day of trial, and (4) allo wing his
and Ms. Buford’s claims to be tried jointly.

                                                            -7-
        Accordingly, we affirm the order granting Ms. Barrow’s motion for summary judgment and
Harrison Brothers Insurance’s motion for a judgment on the pleadings and remand the case to the
trial court for the assessment of damages in accordance with Tenn. Code Ann. § 27-1-122 and for
whatever other proceedings may be required. We tax the costs of this appeal to Sylvester Young
for which execution, if necessary, may issue.



                                                    _____________________________
                                                    WILLIAM C. KOCH, JR., J.




                                              -8-
