                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                            Assigned on Briefs February 19, 2008

           METROPOLITAN GOVERNMENT OF NASHVILLE AND
                  DAVIDSON COUNTY, TENNESSEE
                       v. WALTER CUOZZO

                      Appeal from the Circuit Court for Davidson County
                        No. 05C-3309     Thomas W. Brothers, Judge



                    No. M2007-01851-COA-R3-CV - Filed August 25, 2008


Walter Cuozzo (“the defendant”) was found guilty of traffic violations in general sessions court. He
appealed to circuit court but failed to comply with a local rule that provides “an appellant [on an
appeal from general sessions court] has forty five (45) days to secure a trial date from the court.”
Because of this failure, the circuit court dismissed the defendant’s appeal. We affirm.

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

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which D. MICHAEL SWINEY and
SHARON G. LEE, JJ., joined.

Walter Cuozzo, Old Hickory, Tennessee, appellant, pro se.

Andrew D. McClanahan and Kevin C. Klein, Nashville, Tennessee, for the appellee, Metropolitan
Government of Nashville and Davidson County, Tennessee.


                                              OPINION

                                                   I.

        On August 25, 2005, the defendant was charged by a Metropolitan Police Department officer
with obstructing a traffic lane and disobeying a lawful order of a police officer. The defendant
signed the citation form, acknowledging receipt of the citation. The alleged violations occurred in
the southbound traffic lane of Gallatin Road at or near its intersection with Briley Parkway. The
defendant claims in his brief that he stopped his vehicle in order to advise the officer of the possible
presence of a dead body lying along the side of the highway. At a hearing in the Davidson County
General Sessions Court on October 20, 2005, the defendant was found guilty of both charges. The
defendant subsequently pursued a de novo appeal to the Davidson County Circuit Court (“the trial
court”).

        In connection with his appeal, the defendant received a document from the trial court entitled
“NOTICE TO APPELLANT.” The document, dated October 25, 2005, reflects the following
instruction appearing in bold letters:

               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[.]

The notice further provided that

               [i]f the case is not set within 45 days of its arrival in Circuit Court, an
               order will be entered making the judgment of the General Sessions
               Court the judgment of the Circuit Court with costs taxed to the
               appellant. This is in accordance with Local Rule 20(b). You will
               receive no additional notice when the case arrives in Circuit Court.

The appeal was lodged in the trial court on October 28, 2005.

         On December 8, 2005 – 41 days after the case’s “arrival in Circuit Court” – the defendant
filed a motion to dismiss the charges or for summary judgment and a separate motion to set the case
for trial. He failed, however, to notice the Metropolitan Government (“Metro”) for a hearing on his
motions. About three weeks later, the defendant, proceeding pro se, contacted counsel for Metro by
email to discuss his case. At that time, Metro’s counsel advised the defendant in a responsive email
as follows: “If you plan to press on with your appeal, you need to call the clerk’s office and set a
time for your motions to be heard and send me notice thereof.” However, the defendant failed to set
either of his motions for a hearing and otherwise failed to obtain a date from the court for a hearing
on his appeal.

        On May 3, 2007 – more than one year and six months after the appeal was filed – the trial
court entered an order dismissing the defendant’s appeal because the case had not been set for trial
within 45 days of the appeal being filed in the trial court as required by Rule 20(b) of the Local Rules
of Practice for the Circuit Court, Chancery Court, Criminal Court, and Probate Court of Davidson
County (“Local Rule 20(b)”), which rule provides as follows:

               Once the warrant being appealed is received by and filed with the
               Circuit Court Clerk, the appellant has the duty to set the appeal for a
               hearing before a trial judge. The appellant has forty five (45) days to
               secure a trial date from the court. This time is counted from the date
               the Circuit Court Clerk files the appealed warrant. If the appellant
               fails to secure this order within the 45 day time period, an order will


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               be entered making the judgment of the General Sessions Court the
               judgment of the Circuit Court with costs taxed to the appellant. At
               the time the appeal is perfected in the Clerk’s office, the clerk shall
               give the appellant or the appellant’s attorney written notice of this
               rule.

In response to the order of dismissal, the defendant filed a motion to alter or amend. Following a
hearing on the matter, the trial court entered an order on June 29, 2007, denying the motion. The
court further ordered that the defendant’s appeal be dismissed. The court specifically found that the
defendant understood the requirements of the notice he received “because [he] filed a motion to set
within 45 days.” The court’s order held that the defendant “failed to set his Motion to Set for hearing
letting his appeal remain idle for nearly one year and six months, which constitutes a classic case of
failure to prosecute.” The defendant then filed this appeal.

                                                  II.

       The defendant raises five issues, which taken verbatim from his brief, are as follows:

               1. [Simultaneously] with filing the Motion to set Trial Date, R 10,
               the defendant filed a Motion to Dismiss/Summary [Judgment]
               outlining why this case should not proceed which went unanswered
               and undenied therefore should have been granted under TRCP 8.04
               and (local rule) LR 26.04g.

               2. The local rule cited for dismissal has controlling settled law by this
               court citing 2 additional cases from this jurisdiction and a State
               Statute TCA 16-15-729 which prohibits dismissal based on
               technicalities or procedures and mandates that the case be heard on
               its merits/facts.

               3. Application of the rules were bias[ed] and prejudicial against the
               defendant and only applied to him. See issue # 1 and LR 26.05 (R 31,
               33) where the prosecutor could have and [in my opinion] should have
               set the date at anytime he wanted including but not limited to
               responding to issue # 1.

               4. It can reasonably [be] argued that the city has the responsibility in
               a de novo trial to prosecute their case as the defendant has no case he
               wishes to prosecute and no charges to defend against.

               5. The defendant was in compliance with rule 20 as he was told it
               meant when he timely filed his Motion to Set and decided by this



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               Court in Pieny v United Imports which cited 2 other Appellate Court
               cases from this jurisdiction and TCA 16-15-729.

                                                  III.

         A dismissal pursuant to Local Rule 20(b) is analogous to a default judgment under Tenn. R.
Civ. P. 55.01 or involuntary dismissal for failure to prosecute under Tenn. R. Civ. P. 41.02(1), as the
purpose of Local Rule 20(b) is to assure that cases appealed from general sessions court to circuit
court are tried with dispatch. Crom-Clark Trust v. McDowell, No. M2005-01097-COA-R3-CV,
2006 WL 2737828, at *2 (Tenn. Ct. App. M.S., filed September 25, 2006). See Sellers v. Anderson,
No. 01A01-9703-CV-00114, 1997 WL 653914, at *2 (Tenn. Ct. App. M.S., filed October 22, 1997).
The trial court’s decision to dismiss this case pursuant to Local Rule 20(b) is subject to review under
an abuse of discretion standard. Under the abuse of discretion standard, a trial court’s ruling should
be upheld if reasonable minds could disagree as to the propriety of the decision made. Summers v.
Cherokee Children & Family Services, Inc., 112 S.W.3d 486, 530 (Tenn. Ct. App. 2002) (citing
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). A trial court abuses its discretion only when
it applies an incorrect legal standard or reaches a decision which is against logic or reasoning or that
causes an injustice to the party complaining. Summers, 112 S.W.3d at 530. The abuse of discretion
standard does not permit the appellate court to substitute its judgment for that of the trial court. Id.
The burden of establishing an abuse of discretion is on the party seeking to overturn the trial court’s
ruling on appeal. Id. (citing Ballard v. Herzke, 924 S.W.2d 652, 659 (Tenn. 1996)).

                                                  IV.

                                                  A.

        The defendant first asserts that he was entitled to dismissal or summary judgment in this case
pursuant to Tenn. R. Civ. P. 8.04 and Local Rule 26.04(g). He argues it was Metro that was in
default for not answering his motion to dismiss because a “non answer is a non defense or an
admission that the motion is true.” The defendant contends that if the trial court was going to make
any ruling sua sponte it should have been to grant the motion to dismiss, as that motion was the only
pleading actually before it.

       Tenn. R. Civ. P. 8.04 provides that averments in a pleading to which a responsive pleading
is required are deemed admitted if not denied in a responsive pleading. However, when no
responsive pleading is filed, the opposing party must invoke the default judgment procedures in
Tenn. R. Civ. P. 55 rather than wait until trial and then invoke Tenn. R. Civ. P. 8.04. Smith v.
Smith, 643 S.W.2d 320, 323 (Tenn. 1982); Story v. Lanier, 166 S.W.3d 167, 182-83 (Tenn. Ct. App.
2004). Local Rule 26.04(e) provides as follows:

               Responses to motions, including counter-affidavits, depositions,
               briefs or any other matters presented in opposition to motions, must



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               be filed with the clerk’s office by the close of business on the Monday
               before the Friday on which the motion is to be heard.

(Emphasis added.) Under Local Rule 26.04, motions are routinely granted if unopposed. See State
ex rel. Pope v. Xantus Healthplan of Tenn., Inc., No. M2000-00120-COA-R10-CV, 2000 WL
630858, at *12 (Tenn. Ct. App. M.S., filed May 17, 2000). Since the defendant’s motion to dismiss
was unopposed, the defendant argues that the trial court should have granted it.

        The defendant’s argument lacks merit because he failed to follow the local rules requiring
that he set a hearing date on his motions. Because no hearing date was set, the time for Metro to file
a response to his motion was never triggered. Accordingly, the defendant was not entitled to have
his motion to dismiss granted pursuant to Local Rule 26.04. His contention under Tenn. R. Civ. P.
8.04 fails because he did not invoke the default judgment procedures pursuant to Tenn. R. Civ. P.
55. The defendant is not entitled to relief pursuant to Tenn. R. Civ. P. 8.04 or Local Rule 26.04(g).

                                                  B.

       The defendant’s second issue asserts that Tenn. Code Ann. § 16-15-729 and Pieny v. United
Imports, Inc., No. M2004-01695-COA-R3-CV, 2005 WL 2140853 (Tenn. Ct. App. M.S., filed
September 6, 2005), prohibit dismissal of his appeal. Tenn. Code Ann. § 16-15-729 (Supp. 2007),
provides as follows:

               No civil case, originating in a general sessions court and carried to a
               higher court, shall be dismissed by such court for any informality
               whatever, but shall be tried on its merits; and the court shall allow all
               amendments in the form of action, the parties thereto, or the statement
               of the cause of action, necessary to reach the merits, upon such terms
               as may be deemed just and proper. The trial shall be de novo,
               including damages.

In Ware v. Meharry Med. Coll., 898 S.W.2d 181, 184 (Tenn. 1995), the Tennessee Supreme Court
noted as follows:

               De novo appeals from the general sessions courts differ from other
               types of appellate proceedings. The circuit court does not review the
               general sessions court’s decision. Hohenberg Bros. Co. v. Missouri
               Pac. R.R., 586 S.W.2d 117, 119 (Tenn. Ct. App. 1979). Rather, it
               provides the parties an entirely new trial as if no other trial had
               occurred and as if the case had originated in the circuit court. Teague
               v. Gooch, 206 Tenn. 291, 296, 333 S.W.2d 1, 3 (1960); Odle v.
               McCormack, 185 Tenn. 439, 445, 206 S.W.2d 416, 419 (1947);
               Braverman v. Roberts Constr. Co., 748 S.W.2d 433, 435 (Tenn. Ct.



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                App. 1987); Lawrence A. Pivnick, Tennessee Circuit Court Practice,
                § 3-10, at 115 (3d ed. 1991) (“Pivnick”).

Thus, Tenn. Code Ann. § 16-15-729 requires that cases appealed from general sessions court to
circuit court be treated as though they originated in the circuit court, thereby allowing amendments
to the pleadings, the action, and the parties. Ware, 898 S.W.2d at 184-185.

        However, the defendant’s appeal was not dismissed because of an “informality”
contemplated under Tenn. Code Ann. § 16-15-729. The statute does not abrogate a circuit court’s
authority to dismiss an appeal for failure to comply with a rule of procedure like Local Rule 20(b).
Trial courts have clear authority to adopt local rules of practice to supplement the Tennessee Rules
of Civil Procedure. Tenn. S. Ct. R. 18(a); Tenn. Code Ann. §§ 16-2-511, 16-3-407 (1994). Further,
they have broad authority to control their dockets and the procedures in their courts. Hessmer v.
Hessmer, 138 S.W.3d 901, 904 (Tenn. Ct. App. 2003). Tenn. Code Ann. § 16-15-729 does not
suspend the court’s ability to enforce a procedural rule designed to insure that appellants from
general sessions court pursue their appeals in an expeditious manner. Under the facts of this case,
the defendant failed to obtain a trial date within 45 days after perfecting his appeal from general
sessions court. He allowed his case to languish for over 18 months. We hold that the trial court
properly acted within its sound discretion when it entered its order dismissing the defendant’s case.
The action dismissing the defendant’s appeal pursuant to Local Rule 20(b) does not run afoul of
Tenn. Code Ann. § 16-15-729.

        The defendant argues that our decision in Pieny v. United Imports, Inc., 2005 WL 2140853
(Tenn. Ct. App. 2005), supports his position in this case. We disagree. In Pieny, the trial court
addressed an appeal from general sessions court in which the appealing party had filed a motion to
set within 45 days of the appeal being filed in circuit court but had failed to secure a trial date during
the same 45-day period. Id. at *1. The trial court dismissed the appeal because of this failure. In
reversing the trial court, we relied in Pieny upon our decision in May v. Woodlawn Memorial Park,
Inc.., No. M2001-02945-COA-R3-CV, 2002 WL 31059223 at *2 (Tenn. Ct. App. M.S., filed
September 17, 2002) in which we noted that

                it would fly in the face of justice to require that the matter actually be
                set within the forty-five (45) day period prescribed by Local Rule
                20(b). Such a holding could open the rule to abuse and contravene
                the purpose behind the Tennessee Rules of Civil Procedure.

Pieny, 2005 WL 2140853 at *4. In the case now before us, the defendant failed, for some 18
months, to set his motion for a hearing as required by the local rule. In Pieny, we took issue with
the trial court’s belief that the appeal had to be set within the critical 45-day period. Our holding in
Pieny has no bearing whatsoever on the facts now before us.




                                                   -6-
                                                 C.

       The defendant next asserts that the application of the rules was biased against him and that
Metro should have set the date for the hearing on his motions and the trial of his appeal. The
defendant relies on Local Rule 26.05(a), which provides as follows:

               Docketing of a motion will be complete upon filing the motion with
               the Chancery, Probate and Circuit Court Clerks, provided it contains
               notice of a hearing date. If no hearing date is requested upon the
               filing of the motion, either counsel may file a notice of hearing for a
               previously filed motion and serve opposing counsel and/or party.

        The defendant’s argument fails because he has made no showing that the rules were applied
in a biased fashion against him. He asserts that Metro should have set his motion to dismiss for
hearing and his appeal for trial for him, implying that the rules of procedure should not apply to him
since he was proceeding pro se. This contention is without merit. The trial court could not excuse
the defendant from complying with the same substantive and procedural rules that Metro was
expected to observe. See Hessemer, 138 S.W.3d at 903; Hodges v. Attorney General, 43 S.W.3d
918, 920 (Tenn. Ct. App. 2000). Pro se parties are not excused from complying with the applicable
substantive and procedural law. Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App.
1988). They must follow the same procedural and substantive law as the represented party. Id.
Pursuant to Local Rule 20(b), the defendant had the duty to secure the trial date for his appeal.
Under this Rule, Metro had no duty to set either of the defendant’s motions for hearing.

                                                 D.

       Lastly, the defendant essentially argues that he complied with Local Rule 20(b) by filing the
motion to set. We disagree.

        The dismissal of a case for failure to comply with Local Rule 20(b) is analogous to granting
a default judgment. Default judgments are not favored, and thus Tenn. R. Civ. P. 55.02 permits trial
courts to set aside default judgments in accordance with Tenn. R. Civ. P. 60.02(1). See Keck v.
Nationwide Sys., Inc., 499 S.W.2d 266, 267 (Tenn. Ct. App. 1973). When deciding whether to set
aside a default judgment, courts should construe the rules liberally and should set the default aside
whenever there is a reasonable doubt about the justness of dismissing the case before it can be heard
on its merits. See Tennessee Dep’t of Human Servs. v. Barbee, 689 S.W.2d 863, 866-67 (Tenn.
1985). The courts should focus principally on whether the default was willful, whether the non-
defaulting party’s ability to present his or her claim will be prejudiced, and whether the defaulting
party has a colorable defense to the claim. See Nelson v. Simpson, 826 S.W.2d 483, 485 (Tenn. Ct.
App. 1991).

        The circumstances in this case do not favor granting the defendant any relief. He was aware
of, and had notice of, his duty to secure the trial date for his appeal. He may not have known, at the


                                                 -7-
time of the filing of his motion to set on December 8, 2005, that he also needed to schedule that
motion for hearing. However, upon contacting counsel for Metro, he was advised that he needed to
contact the clerk’s office to set the motion for a hearing. He then neglected his appeal for over 18
months. His neglect of the appeal demonstrates a total lack of concern for the appeal he initiated.

         In his brief, the defendant quotes the rule indicating that the trial court was to provide him
“an entirely new trial as if no other trial had occurred,” and argues therefore that unless Metro
brought the case before the court, “there is no case.” The defendant claims that the “burden of
proof” is on Metro “to accuse and prove that an offense has been committed.” He asserts that “the
trial court is without jurisdiction and authority to uphold a prior ‘judgment’ that according to [Tenn.
Code Ann. § 16-15-729] never happened.” These statements of the defendant support the conclusion
that he perhaps purposefully and willfully neglected his appeal, possibly unmindful that a dismissal
of the appeal would make the general sessions judgment the judgment of the trial court. In any
event, the defendant’s arguments miss the mark because the trial court’s duty to conduct “an entirely
new trial” does not come into play unless the defendant takes the necessary steps to pursue his
appeal. This he did not do.

        Any claim by the defendant that he wanted to pursue his appeal seems disingenuous
considering the 18 months of neglect. The defendant was only stirred to action by the trial court’s
sua sponte dismissal of his appeal. Under the facts of this case, dismissal of the appeal was an act
within the discretion of the trial court.

                                                  V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant, Walter
Cuozzo. This case is remanded to the trial court for collection of costs assessed below, pursuant to
applicable law.


                                                       ___________________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




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