                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                August 24, 2010 Session

 ALEX LYON & SON SALES MANAGERS AND AUCTIONEERS, INC. v.
                      GREGG BOLES

               Appeal from the Chancery Court for Rutherford County
                No. 08-1494-CV    Robert E. Corlew III, Chancellor


                   No. M2010-00388-COA-R3-CV - October 5, 2010


Suit was filed for breach of contract. Plaintiff sought summary judgment, which was denied.
A trial on the merits followed and the trial court ruled for the defendant. Plaintiff appeals,
seeking review of the denial of summary judgment. Since there was a trial on the merits, we
cannot review the denial of the summary judgment in this case. We affirm the trial court.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and F RANK G. C LEMENT, J R., J., joined.

S. Keenan Carter, Nashville, Tennessee, for the appellant, Alex Lyon & Son Sales Managers
and Auctioneers, Inc.

Gregg Boles, Murfreesboro, Tennessee, Pro Se.

                                         OPINION

       Alex Lyon & Son Sales Managers and Auctioneers, Inc. (“Lyon”) sued Greg Boles
for breach of contract. Lyon claimed that Boles agreed to sell ten pieces of heavy equipment
to Lyon for $160,000. Lyon paid the money and Boles delivered nine of the ten pieces of
equipment. Lyon wanted the return of $45,000, the value of the piece of equipment that
Boles allegedly did not deliver, under either a breach of contract theory or rescission of the
unperformed portion of the agreement.

      Boles answered alleging that their agreement was that Lyon was to pay Boles
$160,000 and pay an additional $45,000 to CNH Capital, which held a security interest in the
equipment. He maintained that their agreement was not satisfied by Lyon, so he repossessed
the backhoe, which was worth approximately $45,000. Boles’s attorney subsequently
withdrew and Boles proceeded pro se.

        Lyon filed a motion for summary judgment, which the trial court denied. A bench
trial was held and the trial court ordered the plaintiff’s case dismissed.1 Lyon appealed and
argues that the motion for summary judgment should have been granted. Lyon claims that
the trial court denied the motion “solely” because Boles was acting pro se.

      Summary judgments are reviewed de novo with no presumption of correctness. Doe
v. HCA Health Servs. of Tenn., Inc., 46 S.W.3d 191, 196 (Tenn. 2001). Under the
circumstances of this case, however, we first must examine whether we can even review the
summary judgment denial.

        Tennessee cases repeatedly state that “when the trial court’s denial of a motion for
summary judgment is predicated upon the existence of a genuine issue as to a material fact,
the overruling of that motion is not reviewable on appeal when subsequently there has been
a judgment rendered after a trial on the merits.” Arrow Elecs. v. Adecco Employment Servs.,
Inc., 195 S.W.3d 646, 650 (Tenn. Ct. App. 2005); see also Wagner v. Fleming, 139 S.W.3d
295, 304 (Tenn. Ct. App. 2004); Klosterman Dev. Corp. v. Outlaw Aircraft Sales, Inc., 102
S.W.3d 621, 636 (Tenn. Ct. App. 2002); Bradford v. City of Clarksville, 885 S.W.2d 78, 80
(Tenn. Ct. App. 1994); Bills v. Lindsay, 909 S.W.2d 434, 437 (Tenn. Ct. App. 1993);
Hobson v. First State Bank, 777 S.W.2d 24, 32 (Tenn. Ct. App.1989); Mullins v. Precision
Rubber Prods. Corp., 671 S.W.2d 496, 498 (Tenn. Ct. App. 1984); Tate v. County of
Monroe, 578 S.W.2d 642, 644 (Tenn. Ct. App.1978). Our cases do not, however, reflect the
reason for this rule.

        A denial of summary judgment is an interlocutory order and does not satisfy the
finality requirement of Tenn. R. App. P. 3(a). See Williamson County Broad. Co. v.
Williamson County Bd. of Educ., 549 S.W.2d 371, 373 (Tenn. 1977). When summary
judgment is denied due to the existence of a genuine issue as to a material fact, the parties
proceed to try the issue and “the question of the validity of the denial of summary judgment
in effect becomes moot.” E.E.O.C. v. Sears, Roebuck & Co., 839 F.2d 302, 353 n.55 (7 th Cir.
1988). The denial of summary judgment due to the existence of a genuine issue regarding
a material fact merely decides that a trial is necessary. Once that trial has occurred, there is
no need to reexamine the denial of summary judgment:


        1
         The trial court decreed that “this cause be . . . dismissed.” In the transcript of the trial court’s ruling,
the chancellor stated: “Given the circumstances we have, I can’t find that one side is more credible than the
other. And I think it’s my duty, unfortunately, to dismiss the action.” In effect, he found that neither side
met the burden of proof on its claims.

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       The primary question on summary judgment is whether there exists a genuine
       issue of material fact as to the elements of a party’s claim. Once the summary
       judgment motion is denied and the case proceeds to trial, however, the
       question of whether a party has met its burden must be answered with
       reference to the evidence and the record as a whole rather than by looking to
       the pretrial submissions alone.

Johnson Int’l. Co. v. Jackson Nat’l Life Ins. Co., 19 F.3d 431, 434 (8 th Cir. 1994) (citations
omitted). Furthermore, and more fundamentally, to allow such review would not provide
proper respect for the judicial process. Unlike a summary judgment, a matter that is decided
at trial has been through the true test of the adversarial process where witnesses are
presented, cross-examined, and subjected to the credibility assessment of the court or jury.
Each party has had the most complete hearing it can have. No good reason exists to
disregard that process and substitute our judgment based on facts presented via affidavits,
pleadings, and discovery documents at an earlier point in the litigation.

      The question in this case becomes whether the trial court denied the summary
judgment because genuine issues of material fact existed or, as Lyon maintains, because
Boles was acting pro se. Boles represented himself after his attorney withdrew. The Court
of Appeals has addressed how appellate courts should treat pro se litigants as follows:

              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 lack formal legal training 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 by pro se litigants using
       standards that are less stringent than those applied to papers prepared by

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       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).

MBNA Am. Bank, N.A. v. Baker, No. M2004-02239-COA-R3-CV, 2007 WL 3443600, at *3
(Tenn. Ct. App. Nov.15, 2007).

       The trial court’s order denying the motion for summary judgment states: “In light of
the pro se status of the Defendant, however, the Court determined that it would be more
appropriate to dispose of this case at trial and finds that Plaintiff’s Motion for Summary
Judgment is hereby DENIED.” Thus, Lyon argues that the motion was denied solely on the
basis of Boles’s pro se status.

       Boles’s unfamiliarity with the legal process is evident in his handling of the summary
judgment motion. Lyon filed a properly supported motion. Boles replied to Lyon’s
statement of undisputed material facts with his own statement of facts stating that, beyond
the agreement to buy the equipment for $160,000, Lyon was supposed to pay off CNH
Capital’s interest. Unfortunately, he did not send this statement to Lyon’s attorney, who
maintains that the summary judgment motion was unanswered. Nevertheless, Boles’s
inartful statement of facts created a dispute of material fact. Applying the less stringent
standards for pro se filings, the trial court did not hold Boles’s poor response to the summary
judgment motion against him.

      Since the trial court essentially found a genuine issue of material fact, under
Tennessee case law the summary judgment motion is not reviewable on appeal when
subsequently there was a judgment rendered after a trial on the merits. Arrow Elecs., 195
S.W.3d at 650. We agree with the trial court.




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      Costs of appeal are assessed against the appellant, Alex Lyon & Son Sales Managers
and Auctioneers, Inc., for which execution may issue if necessary.


                                        ___________________________
                                        ANDY D. BENNETT, JUDGE




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