                                                                                         08/27/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                          Assigned on Briefs August 3, 2020

  AMELIA JOHNSON ET AL. v. MILLINGTON MUNICIPAL SCHOOLS

                  Appeal from the Circuit Court for Shelby County
                      No. CT-003896-15 Jerry Stokes, Judge
                     ___________________________________

                           No. W2019-01547-COA-R3-CV
                       ___________________________________

Appellants filed suit against Appellee under the Governmental Tort Liability Act,
alleging that Appellee breached its duty to protect Appellant/student, who was injured in
a fight on school grounds. The trial court held that Appellants failed to meet their burden
to show negligence and denied relief. The appellate record contains no transcript or
statement of the evidence for our review as required by the Tennessee Rules of Appellate
Procedure. Accordingly, we conclude that there was sufficient evidence to support the
trial court’s findings. Affirmed and remanded.


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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.

Amelia Vaughn Johnson, Gemelia Johnson, and Rodneshia Vaughn, Memphis,
Tennessee, appellants, pro se.

Edward J. McKenney, Jr., and William J. Wyatt, Memphis, Tennessee, for the appellee,
Millington Board of Education.


                                       OPINION

                                     I. Background

       Amelia Vaughn is the mother of Gemelia Johnson and Rodneshia Vaughn
(together with Gemelia Johnson and Amelia Vaughn, “Appellants”). During the 2013-
2014 school year, Gemelia Johnson was an eighth-grade student at Woodstock Middle
School, where she was on the cheerleading team. During Gemelia’s 2013-2014 school
year, Woodstock Middle School hosted a sporting event against Millington Middle
School, which had a cheerleading team of its own. During the event, two female
cheerleaders from Millington Middle School, T’Kya Johnson (no relationship to Gemelia
Johnson) and Taylor Ballard, allegedly began to mock the Woodstock cheerleaders and
Gemelia in particular. The two girls later made a Facebook post about Gemelia and the
cheerleading incident. Gemelia informed her cheerleading coach about the incident.

       After the 2013-2014 school year, Gemelia’s parents enrolled her as a ninth-grader
for the 2014-2015 school year at Millington High School, which is part of Millington
Municipal Schools (“Appellee”). On September 22, 2014, Gemelia’s sister, Rodneshia
Vaughn (a 2014 Millington High School graduate), arrived at Millington High School
around 2:00 p.m. to pick Gemelia up from school. Sometime at or around the time
Rodneshia arrived at the school, two fights occurred on campus. One of the fights
involved Gemelia and several other students. Rodneshia got out of her vehicle and
engaged in the fight in aid of her sister. A school law enforcement officer, as well as
teachers and others, helped break up the melee. Gemelia suffered a broken nose. After a
school officer and school officials took written statements from each of the fight
participants, Appellee suspended Gemelia.

       On September 15, 2017, Appellants filed suit against Appellee under the
Governmental Tort Liability Act, Tenn. Code Ann. §§ 29-20-101, et seq. (“GTLA”),
alleging negligence. Specifically, Appellants alleged that Appellee breached its duty to
supervise students waiting for their rides.

        After several delays, the trial court heard the case on July 8 and 9, 2019. Our
record includes neither a transcript of the evidence adduced at the hearing, nor a
Tennessee Rule of Civil Procedure 24 statement of the evidence. However, in its order,
the trial court summarized the testimony as follows:

              Gemelia testified that she was standing outside the school building
      waiting on her father to pick her up, unaware that Rodneshia was picking
      her up that day. She testified that the two girls, Taylor Ballard, and T’Kya
      Johnson, were standing outside the building where “student car riders” are
      picked up by their parents and love ones. The two girls were in close
      proximity to her and started “looking at her sideways.” Then suddenly and
      without warning one of the girls, who was standing behind a young man
      named Devarix Cleaves, swung around the young man and hit Gemelia.
      Then both T’Kya Johnson and Taylor Ballard, along with Mr. Cleaves,
      began beating her until Rodneshia Vaughn came to her aid. Gemelia
      suffered a broken nose from the fight with lingering complications that
      exist to the date of this trial.
              Rodneshia testified that she drove up to pick up Gemelia. She could
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not find Gemelia until she got out her vehicle and then saw Gemelia been
attacked by two or more people. Rodneshia testified that she tried to break
up the fight whereupon one or more of the girls attacked her. Rodneshia
suffered arm, shoulder, back and leg/thigh abrasions. She received medical
treatment and had to wear a sling as a result of the attack.
        Amelia Vaughn is the mother of Gemelia. Amelia testified that she
wanted her daughter to attend Millington High. At the beginning of the
2014-15 school year, at Millington, she spoke to a school counselor and
informed that counselor that Gemelia had been mocked by T’Kya Johnson
and Taylor Ballard when Gemelia was a student at Woodstock School. She
testified that the counselor said she would make a note of that information
and place it in Gemelia’s school records.
        Gregory Johnson[, Gemelia’s father] testified that whenever he picks
up Gemelia from after school, he has observed that school security always
seemed lax, with no teachers present on the outside of the school. After he
learned that Gemelia had been in a fight, he went to the school and voiced
concerns that a male individual may have hit Gemelia during her altercation
with the two girls.
        Officer Brian Luna testified that he was one of two Shelby County
Sheriff deputies who was assigned to Millington High School. He further
testified that on September 22, 2014, he was directing traffic when he saw
two fights involving four girls. The fights were approximately twenty-five
yards from him. He then left from directing traffic and broke up one of the
fights, with the help of a school teacher. He later interviewed T’Kya
Johnson and Taylor Ballard. That same afternoon he also spoke to
Rodneshia Vaughn who told him that Gemelia got out of Rodneshia’s
vehicle and fought with a girl. Rodneshia said to him that is when she got
out of her vehicle to help Gemelia.
        Rudolph Ritter, a math teacher at Millington, testified that he was
assigned to and was outside of the 100 Hallway Building. The 100
Hallway Building is the building near the semicircle drive where students
are picked up by parents and love ones. On September 22, 2014,
immediately after school, Mr. Ritter went to his watch station and observed
a young lady get out of her vehicle, run-up to a young girl nearly ten feet
from him and struck her. Rodneshia looked like the young, lady who he
saw exit her vehicle and struck this other girl. He and other teachers broke
up that fight. Then he saw another fight occurring as well.
        On September 22, 2014, at the end of the school day, Millington
math teacher, Sarah Garner, was assigned to watch students exit the 100
Hallway Building. She saw a girl run up and hit another girl. She then saw
math teacher Ritter running to break up that fight. She yelled for the girls
to stop fighting. She remembered taking one of the girls to her classroom.
On September 22, 2014, Sarah Beth Hale was the assistant principal at
                                     -3-
       Millington. She testified that on that day she was outside the entrance to
       the school where she saw Gemelia get into a white sports utility vehicle
       mere minutes before the fights in question occurred. After the two fights
       were broken up, Gemelia was taken to the school office. There, Gemelia
       informed Ms. Hale that she got out of the vehicle because a girl was using
       profanity toward her. Gemelia further told Ms. Hale that she slapped the
       girl who was directing profanity at her. Ms. Hale later talked to Gemelia’s
       parents about the incident. After everyone was interviewed, Ms. Hale
       suspended the three female students that were involved in the fight.
       Gemelia’s parents seemed more concerned about what actions, if any,
       would be taken against Devarix Cleaves, who they believed hit Gemelia.

       On July 29, 2019, the trial court entered its Order of Judgment with Findings of
Fact and Conclusions of Law, wherein it held that Appellants failed to meet their burden
to show that Appellee was negligent. Appellant’s appeal.

                                         II. Issue

       The sole issue for review is whether the evidence preponderates against the trial
court’s findings of fact and conclusions of law.

                                 III. Standard of Review

       This case was tried by the court sitting without a jury. As such, we review the trial
court’s findings of fact de novo on the record of the trial court, accompanied by a
presumption of the correctness of these findings, unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); Langschmidt v. Langschmidt, 81 S.W.3d 741, 744
(Tenn.2002). With respect to the trial court’s conclusions of law, however, our review is
de novo with no presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293,
296 (Tenn. 1997); Broadbent v. Broadbent, 211 S.W.3d 216, 219-20 (Tenn.2006).

                                       IV. Analysis

      As set out in its order, the trial court made the following findings of fact and
conclusions of law:

                                  FINDINGS OF FACT

              After listening to all of the evidence as well as weighing the
       evidence, the Court finds Gemelia Johnson was involved in a mocking
       event with Taylor Ballard and T’Kya while Gemelia was an eighth-grade
       student at Woodstock Middle School. Gemelia told her Woodstock coach
       about the mocking incident. Gemelia was later the subject of a Facebook
                                          -4-
post by one of the girls regarding the mocking event. When Gemelia
enrolled at Millington High School, she learned that these same two girls
attended Millington High as well. While at the Millington school, these
girls displayed unpleasant looks when they saw Gemelia. However, no
words were ever exchanged between Gemelia and the other two girls.
        On September 22, 2014, a fight occurred when Rodneshia drove her
vehicle to pick up Gemelia. After Rodneshia picked up Gemelia, Gemelia
received expletives from either T’Kya Johnson or Taylor Ballard. After
being the victim of such expletives, Gemelia exited Rodneshia’s vehicle
and physically confronted one or both of the girls. A fight ensued with
both girls, which prompted Rodneshia to get out of the driver’s side of her
vehicle in order to help Gemelia. Rodneshia then became physically
engaged with one or both girls who were fighting Gemelia.
        The Court finds that Plaintiff has not established by a preponderance
of the evidence that Defendant Millington was on notice of any antagonism
between Gemelia and the two other girls. Amelia Johnson’s meeting with
a school counselor to discuss Gemelia’s prior encounter with the two girls
was simply not supported by the evidence. There was no name associated
with the counselor, nor was there any written record that the information
Amelia gave this counselor was ever memorialized in Gemelia’s school
records. Ms. Hale affirms that if such information was presented to the
counselor, the counselor would be obligated to forward it to her. If such
was presented to Ms. Hale, that information would be taken very seriously
and would be investigated. Such information was never recorded in order
to be forwarded to her.
        In addition, the Court finds that after school ended on September 22,
2014, there were teachers outside of the school building watching for the
students. In addition, on September 22, 2014, Sheriff Deputy Brian Luna
was outside of the school on the day in question directing traffic when he
observed two fights around twenty-five feet from him. Also, Officer Luna
was unequivocal that Rodneshia, a student he knew from the prior school
year, informed him that Gemelia got out of Rodneshia’s vehicle and fought
with a girl.
        The Court further finds that no male individual was involved in
either fight with the four females. In addition, all of the females were
charged with a criminal offense. Also, neither the parents of Gemelia nor
Rodneshia ever challenged or denied the statements (until they testified in
this trial) that were attributed to Gemelia and Rodneshia after the fight.
Further, there was at least one eyewitness who saw Rodneshia leave her
vehicle to fight with one of the two girls.
        It must be noted that the Court finds that Ms. Hale was clearly
impeached on cross-examination about the color and type of Rodneshia’s
vehicle. Ms. Hale was further impeached when she testified that Rodneshia
                                      -5-
      tried to get back in her vehicle to drive away after the fights. Absolutely no
      one else testified to that, as all participants were taken into the school
      building and held in custody immediately after the fight. Despite the
      impeachment on those points, Ms. Hale was unwaveringly clear that she
      saw Gemelia getting in a vehicle mere minutes prior to the fight. Ms. Hale
      was also clear that Gemelia informed her that she (Gemelia) got out of a
      vehicle and slapped one of the girls who cursed at her. Further on the same
      or next day, Ms. Hale made a report of the incident, including what
      Gemelia stated to her.

                               CONCLUSIONS OF LAW

             This Court hereby rules that Millington had no actual or constructive
      notice of any impending animosity between Gemelia Johnson and Taylor
      Ballard and T’Kya Johnson such that preventive measures could have been
      taken by the Millington School officials in time to stop a likely physical
      confrontation between them. The Court further rules that on September 22,
      2014, the fight occurred while teachers as well as one Shelby County
      Sheriff's deputy, were in close proximity to the semi-circle driveway when
      Rodneshia’s vehicle entered onto the school property. The fight occurred
      organically before any school personnel had time to anticipate it or to
      prevent it. Plaintiffs presented credible evidence during their case-in-chief.
      However, the Court rules that later the defense presented proof that was
      equal to the Plaintiffs’ proof. Therefore, this Court rules that Plaintiffs did
      not carry their burden of proof by a preponderance of evidence that
      Defendant had notice of animosity between students and failed to take
      appropriate security measures to prevent foreseeable harm to Gemelia
      Johnson and Rodneshia Vaughn. Therefore, this Court finds in favor of
      Defendant.

       Appellants have asked this Court to review the foregoing findings of fact and
conclusions of law against the evidence presented at the hearing. However, as noted
above, there is no transcript or statement of the evidence in the appellate record.

      Rule 24 of the Tennessee Rules of Appellate Procedure outlines the requirements
concerning both content and preparation of the appellate record, to wit:

      (a) The record on appeal shall consist of: (1) copies, certified by the clerk of
      the trial court, of all papers filed in the trial court except as hereafter
      provided; (2) the original of any exhibits filed in the trial court; (3) the
      transcript or statement of the evidence or proceedings, which shall clearly
      indicate and identify any exhibits offered in evidence and whether received
      or rejected. . . .
                                          -6-
                                           ***

       (b) . . .the appellant shall have prepared a transcript of such part of the
       evidence or proceedings as is necessary to convey a fair, accurate and
       complete account of what transpired with respect to those issues on appeal.


If no transcript is available, Tennessee Rule of Appellate Procedure 24 provides that “the
appellant shall prepare a statement of the evidence or proceedings from the best available
means, including the appellant's recollection. The statement should convey a fair,
accurate and complete account of what transpired with respect to those issues that are the
bases of appeal.” Tenn. R. App. P. 24(c). The responsibility for the preparation of the
transcript or a statement of evidence is on the parties, and the appellant has the primary
burden to ensure that a proper record is prepared and filed in this Court. Tenn. R. App.
P. 24; McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989).

        While we are cognizant that Appellants are proceeding pro se in this appeal, it is
well-settled that “pro se litigants are held to the same procedural and substantive
standards to which lawyers must adhere.” Brown v. Christian Bros. University, No.
W2012-01336-COA-R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5, 2013),
perm. app. denied (Tenn. Jan. 15, 2014). While a party who chooses to represent himself
or herself is entitled to the fair and equal treatment of the courts, Hodges v. Tenn. Att’y
Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000), “[p]ro se litigants are not . . . entitled to
shift the burden of litigating their case to the courts.” Whitaker v. Whirlpool Corp., 32
S.W.3d 222, 227 (Tenn. Ct. App. 2000). The burden is on the Appellant to show that the
evidence preponderates against the judgment of the trial court. Coakley v. Daniels, 840
S.W.2d 367, 370 (Tenn. Ct. App. 1992) (citing Capital City Bank v. Baker, 442 S.W.2d
259, 266 (Tenn. Ct. App. 1969)). “The burden is likewise on the appellant to provide the
Court with a transcript of the evidence or a statement of the evidence from which this
Court can determine if the evidence does preponderate for or against the findings of the
trial court.” Id.

       Although the resolution of the issue presented rests largely on the relevant facts of
this case, the appellate record contains neither a transcript of the hearing nor a statement
of the evidence pursuant to Tennessee Rule of Appellate Procedure 24(c). In the absence
of any record of the proceedings, this Court cannot make a meaningful review of the
issue. This Court has cautioned that where the issues on appeal turn on factual
determinations, the absence of a transcript or statement of the evidence is essentially fatal
to the party having the burden on appeal. It is well settled that, in the absence of a
transcript or statement of the evidence, this Court must presume that there was sufficient
evidence before the trial court to support its judgment. PNC Multifamily Capital Inst.
Fund XXVI Ltd. P’ship v. Mabry, 402 S.W.3d 654, 661 (Tenn. Ct. App. 2012), perm.
                                            -7-
app. denied (Tenn. Apr. 10, 2013); Outdoor Management LLC v. Thomas, 249 S.W.3d
368, 377 (Tenn. Ct. App. 2007); and Baugh v. Moore, No. M2013-02224-COA-R3-CV,
2015 WL 832589, at *3 (Tenn. Ct. App. Feb. 25, 2015). Without a transcript or statement
of the evidence, we have no way to determine whether the evidence was sufficient to
support the trial court’s findings of fact and its conclusions of law based on those facts.
In other words, our ability to address the issue presented by Appellants in this appeal “is
severely hampered if not eliminated by the absence of transcripts of the hearing or the
trial, or any statement of the evidence prepared in accordance with Tenn. R. App. P.
24(c).” Rowe v. Rowe, No. E2005-01023-COA-R3-CV, 2007 WL 541813, at *5 (Tenn.
Ct. App. Feb. 22, 2007). Because there is no transcript or Rule 24 statement of the
evidence, the facts found by the trial court are conclusive on appeal.

                                     V. Conclusion

      For the foregoing reasons, we affirm the judgment of the trial court. The case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed to the Appellants, Amelia Vaughn Johnson,
Gemelia Johnson, and Rodneshia Vaughn, for all of which execution may issue if
necessary.




                                                 _________________________________
                                                 KENNY ARMSTRONG, JUDGE




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