                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  May 11, 2010 Session

            SHEMAIN SHERILLE RILEY, ET AL. v. EDITH SWIFT

                 Appeal from the Circuit Court for Davidson County
                 No. 08C-2053     Amanda Jane McClendon, Judge


              No. M2009-01717-COA-R3-CV - Filed November 29, 2010


The General Sessions Court awarded the plaintiffs an $8,500 judgment for damages arising
from a motor vehicle accident. The pro se defendant attempted to appeal the judgment to the
Circuit Court, but failed to have the case docketed within 45 days after filing the notice of
appeal, as is required by Davidson County Local Rule 20(b). The plaintiffs filed a motion
to dismiss the appeal on the ground of untimeliness and to enforce the order of the General
Sessions Court. The defendant did not respond to the motion, nor did she appear for the
motion hearing. The Circuit Court granted the plaintiffs’ motion and made the judgment of
the General Sessions Court the judgment of the Circuit Court. The defendant then retained
counsel, who filed a Rule 59.04 motion to alter or amend the judgment eight months after it
was rendered. The Circuit Court denied the motion. We affirm.

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

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and R ICHARD H. D INKINS, JJ., joined.

Edith La Verne Swift, Nashville, Tennessee, Pro Se.

Christopher M. Jones, Nashville, Tennessee, for the appellee, Shemain Riley

                                        OPINION

                                     I. B ACKGROUND

        This appeal arose out of an automobile accident that occurred on December 3, 2005.
Plaintiff Shemain Sherille Riley was driving a car owned by plaintiff Carolyn Taylor. At the
intersection of Russell Street and South Fifth Street in East Nashville, she collided with
defendant Edith Swift, who was driving her own car. All the parties sustained bodily
injuries, including two passengers in Ms. Riley’s car. Both vehicles were totaled.

       On November 28, 2006, Ms. Riley filed a civil warrant in the General Sessions Court
of Davidson County against Ms. Swift. She claimed that Ms. Swift had caused the accident
by operating her car in a negligent manner, and she asked the court to award her a judgment
for both personal injuries and property damage. On February 21, 2008, Ms. Riley filed a
motion to amend her warrant to add as plaintiffs Ms. Taylor and the two passengers in her
car. She attached her own medical bills and those of her two passengers to her motion. The
motion was granted.

        On April 17, 2008 Ms. Swift filed a counter-complaint for property damage against
Ms. Riley. The case went to trial on June 11, 2008. The court found Ms. Swift 100% liable
for the motor vehicle accident. In an order entered on June 17, 2008, the court awarded
$4,000 to Carolyn Taylor for property damages and a total of $4,475.25 to the other three
plaintiffs for their personal injuries. Ms. Swift’s counter-complaint was dismissed with
prejudice, and she was ordered to pay the court costs.

      Ms. Swift filed a pro se notice of appeal with the General Sessions Court clerk on
June 20, 2008. The face of the notice prominently displays the following message in bold
type:

        As the Appellant, it is your responsibility to take the necessary steps
          to have this case set on the docket within 45 days of its arrival in
        Circuit Court in accordance with Davidson County Local Rule 20(b).

        For reasons that are not clear from the record, Ms. Swift did not have her case set on
the Circuit Court docket within the time period specified in Rule 20(b). On August 13, 2008,
the plaintiffs filed a motion in the Circuit Court to dismiss Ms. Swift’s appeal and to enforce
the judgment of the General Sessions Court. A Certificate of Service at the bottom of the
motion stated that a copy of the motion had been sent to Ms. Swift at the address listed on
her notice of appeal by U.S. Mail, postage prepaid. The following statement is found below
the Certificate of Service, in bolded capital letters:

       THIS MOTION IS EXPECTED TO BE HEARD ON SEPTEMBER 5,
       2008 AT 9:00 A.M. FAILURE TO FILE AND SERVE A TIMELY
       WRITTEN RESPONSE TO THIS MOTION MAY RESULT IN THE
       MOTION BEING GRANTED WITHOUT FURTHER HEARING.




                                              -2-
        Ms. Swift did not file a written response to the motion, which came before the court
on the scheduled date. Although Ms. Swift later claimed that she was at the courthouse on
that day, the trial court declared in an order dated September 17, 2008, that the defendant had
failed to appear for the scheduled hearing, that the court had reviewed the pleadings and the
motion to dismiss, and that it granted the motion, adopting the judgment of the General
Sessions Court as the judgment of the Circuit Court. Ms. Swift was again ordered to pay all
court costs.

        Ms. Swift subsequently retained an attorney, who filed a motion to alter or amend the
order of the Circuit Court almost eight months later, on May 15, 2009. The motion asserted
that Ms. Swift actually did appear in court on September 5, 2008, “and was informed by the
Court that no action was being taken because the motion had been struck.” Ms. Swift asked
for relief from the order because of the confusion as to whether the motion to dismiss was
properly dealt with. She attributed some of the confusion to the fact that she was a pro se
defendant.

      The trial court heard the motion to alter or amend on July 10, 2009, including the
arguments of counsel for both sides. In an order filed July 21, 2009, the court found that
“given the delays in this matter,” the defendant was not entitled to relief, and it denied the
motion. This appeal followed.

                                        II. A NALYSIS

       The Tennessee Rules of Civil Procedure include a process, set out in Rule 59, to
enable the trial court to correct its own errors after entry of a judgment or order that
adjudicates all the claims and all the rights and liabilities of all the parties, without the
necessity of an appeal. Post-judgment motions under Rule 59, including a motion to alter or
amend a judgment under Rule 59.04, “shall be filed and served within thirty (30) days after
the entry of the judgment.” If such a motion is filed within the thirty day period, the thirty
day deadline for filing a notice of appeal to this court does not begin to run until the trial
court enters an order that disposes of the post-judgment motion.

        In the present case, Ms. Swift did not file a notice of appeal from the Circuit Court’s
order of September 17, 2008 within thirty days of its entry, thereby rendering that order final
in the sense that it could no longer be appealed. She did, however, file a notice of appeal to
this court within thirty days of the Circuit Court’s dismissal of her motion under Tenn. R.
Civ. P. 59.04 to alter or amend its order of September 17, 2008. Since her notice was timely
as to that motion, our role on appeal is to review the trial court’s holding that she was not
entitled to relief, “given the delays in this matter.”



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       As we noted above, Ms. Swift filed her Rule 59.04 motion to alter or amend the order
of the Circuit Court on May 15, 2009, almost eight months after the filing of the order that
she requested the Circuit Court to alter or amend. Therefore, that motion was itself untimely
under Rule 59. The trial court would have been fully justified in dismissing her motion on
that ground alone. However, the court also had the option of treating Ms. Swift’s motion as
a Rule 60.02 motion for relief, which allows a trial court to correct even a final judgment,
when warranted by extraordinary circumstances. See Toney v. Mueller Co., 810 S. W. 2d 145
(Tenn. 1991).

        If we treat Ms. Swift’s Rule 59.04 motion as a Rule 60 motion, we can look deeper
into the record and examine the circumstances behind the Circuit Court’s order of September
17, 2008, which Ms. Swift asked the Court to alter or amend. That order resulted from Ms.
Swift’s failure to comply with the time requirements of another set of rules – the Davidson
County Local Rules of Procedure. The purpose of those rules is set out in Local Rule § 1.03:
“These rules will be construed to secure simplicity in procedure, fairness in administration,
and the elimination of unjustifiable expense and delay. The Judge or Chancellor will deviate
from these local rules only in the exceptional cases where justice so requires.”

        The Local Rule of Practice that Ms. Swift violated was Rule 20(b) which places a duty
upon a party that files an appeal from a General Sessions judgment to secure a trial date from
the Circuit Court within 45 days from the receipt of that appeal by the Circuit Court Clerk.
Rule 20(b) also requires the clerk to give the appealing party or that party’s attorney written
notice of the rule. That notice appeared prominently on the face of the notice filed by Ms.
Swift.1

        Once the forty-five days passed without a trial date having been secured, Ms. Riley
filed a motion in the Circuit Court to dismiss Ms. Swift’s appeal and to enforce the judgment
of the General Sessions Court. A copy of the motion, which stated that a failure to file and
serve a timely written response to the motion could result in a grant of the motion without
any further hearing, was mailed to Ms. Swift at her last known address. Despite that
warning, the trial court’s order of September 17, 2008 recites that Ms. Swift did not file a
written response to the motion and that she did not appear on September 5, 2008 for the
hearing on the motion. There is no evidence in the record to call into question these findings

        1
          This case is not the first one in which this court has been called upon to consider the legal effect
of a party’s failure to comply with Davidson County Local Rule of Court 20(b). In Metropolitan Government
of Nashville and Davidson County v. Cuozzo, No. M2007-01851-COA-R3-CV, 2008 WL 3914890 (Tenn.
Ct. App. Aug. 25, 2008) (Rule 11 Application for Permission to Appeal denied by Supreme Court, Feb. 17,
2009), we considered such a failure and held that the trial court did not abuse its discretion in ruling against
the appealing party.


                                                      -4-
by the trial court. In the absence of any evidence in the record, we may not even consider
Ms. Swift’s bare assertion that she appeared at the hearing of September 5, 2008.2 Tenn. R.
App. P. 13(c).

       In her initial brief in this appeal, Ms. Swift sets out a long and rambling discussion
of the circumstances of the accident from which the case arose, accuses the plaintiffs of
perjuring themselves during the General Sessions proceeding, and concludes that it was
impossible for her to have been 100% at fault for the accident.

       The scope of the appellate review that this court is authorized to conduct is set out in
Rule 13 of the Tennessee Rules of Appellate Procedure, which states in section (c), that,
“[t]he Supreme Court, Court of Appeals and Court of Criminal Appeals may consider those
facts established by the evidence in the trial court and set forth in the record and any
additional facts that may be judicially noticed or are considered pursuant to Rule 14.” 3 Our
courts have uniformly held section 13(c) to signify that allegations of fact which fall outside
the bounds of that rule may not be considered by the appeals court. See, for example,
Pendleton v. Mills, 73 S.W.3d 115, 119 fn. 7 (Tenn. Ct. App. 2001) (memorandum of law
accompanying motion for summary judgment was not part of the appellate record); State v.
Thompson, 832 S.W.2d 577, 579 (Tenn. Crim. App. 1991) (mere statements of counsel
cannot establish what occurred in the trial court unless supported by evidence in the record);
Reinhart v. Geico Insurance, No. M2009-01989-COA-R3-CV, 2010 WL 3852048 (Tenn.
Ct. App. Sept. 28, 2010) (affidavits that were not presented to the trial court could not be
considered by the Court of Appeals).

        Without an adequate transcript or a statement of the evidence, “this Court must
presume that every fact admissible under the pleadings was found or should have been found
in the appellee’s favor.” McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989);
Gotten v. Gotten, 748 S.W.2d 430, 432 (Tenn. Ct. App. 1987). The briefs of the parties and
their statements during oral argument may sometimes be valuable in helping us understand


        2
          Ms. Swift stated in her pro se reply brief on appeal that she did appear for the hearing of September
5, 2008, and that “[t]he honorable judge made eye contact with the Defendant and stated that the Defendant
had won. Defendant believed that the General Session Court judgment was reversed in Defendant’s favor
and that the case was closed.” However, there is no evidence in the record to support Ms. Swift’s assertion.
        3
         Rule 14 applies to post-judgment facts, consideration of which is declared to lie within the
discretion of the appellate court. As the rule states, however, “[w]hile neither controlling nor fully measuring
the court’s discretion, consideration generally will extend only to those facts, capable of ready demonstration,
affecting the positions of the parties or the subject matter of the action such as mootness, bankruptcy,
divorce, death, other judgments or proceedings. relief from the judgment requested or granted in the trial
court, and other similar matters.” None of Ms. Swift’s allegations meet the definition of post-judgment facts.

                                                      -5-
the record, but they themselves are not part of the record. Counsel cannot establish what
occurred in the trial court unless supported by evidence in the record.

        We are aware that Ms. Swift represented herself on appeal and during some of the
proceedings below. Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts, and the courts should take into account that many pro se litigants
have no legal training and little familiarity with the judicial system. Hessmer v. Hessmer,
138 S.W.3d 901 (Tenn. Ct. App. 2003); 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 accordingly 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;
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).

        According to the record of this case, the defendant failed to have the hearing of her
appeal to the Circuit Court set on the docket in accordance with the local rules, failed to file
a written response to the plaintiffs’ motion to dismiss her appeal and to declare the judgment
of the General Sessions Court the judgment of the Circuit Court, failed to appear in court for
the scheduled hearing on the plaintiffs’ motion, and failed to file her motion to alter or amend
the court’s order within thirty days of its entry, as required by Rule 59 of the Tennessee Rules
of Civil Procedure. In sum, this court can find no basis for reversing the Circuit Court’s
order of July 21, 2009 denying Ms. Swift’s motion to alter or amend its order of September
17, 2008.

                                              III.

       The order of the trial court is affirmed. We remand this case to the Circuit Court of
Davidson County for any further proceedings necessary. Tax the costs on appeal to the
appellant, Edith Swift.




                                                     _________________________________
                                                     PATRICIA J. COTTRELL, JUDGE

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