                                                                                         07/10/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 May 24, 2017 Session

DEBORAH LACY V. HALLMARK VOLKSWAGEN INC. OF RIVERGATE,
                        ET AL.

                 Appeal from the Circuit Court for Davidson County
                   No. 15C-1163      Thomas W. Brothers, Judge


                            No. M2016-02366-COA-R3-CV


A customer at a car dealership filed suit against the sales manager and others for injuries
she allegedly sustained due to an assault and battery by the sales manager. The trial court
granted summary judgment to Defendants because Plaintiff failed to submit any
affidavits setting forth specific facts that showed a genuine issue existed for trial, as
required by Tennessee Rule of Civil Procedure 56. Plaintiff argues that the trial court
erred in granting summary judgment to Defendants. Perceiving no reversible error, we
affirm the trial court’s order granting summary judgment to Defendants.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Deborah Lacy, Madison, Tennessee, Pro Se.

W. Bryan Brooks and Lisa Marie Woods, Nashville, Tennessee, for the appellees,
Hallmark Jeep Inc., Hallmark Volkswagen Inc. at Rivergate, and Scott Masters.

                                       OPINION

                      I. FACTUAL AND PROCEDURAL BACKGROUND

        On March 29, 2014, Deborah Lacy (“Ms. Lacy”) entered Hallmark Volkswagen
Inc. at Rivergate (“Hallmark Volkswagen”), a Hallmark Jeep, Inc. dealership, in order to
purchase a new vehicle. Cian Rourke (“Mr. Rourke”), a salesman at Hallmark
Volkswagen, assisted Ms. Lacy with the purchase of a 2014 Volkswagen Passat.
Following a twenty-minute test drive, Ms. Lacy and Mr. Rourke entered his office and
completed paperwork pertaining to the sale of the vehicle. Scott Masters (“Mr.
Masters”), a sales manager at Hallmark Volkswagen, joined Ms. Lacy and Mr. Rourke to
assist in finalizing the sale.

        Nearly one year later, on March 26, 2015, Ms. Lacy filed a complaint in the First
Circuit Court for Davidson County against Hallmark Volkswagen, Hallmark Jeep, Inc.,
James Cameron III,1 and Mr. Masters (collectively “the Defendants”), claiming that Mr.
Masters assaulted and battered her at the completion of the sale. Ms. Lacy further alleged
that Mr. Masters violated her human and civil rights, “while placing her under fear,
duress, and Physical [anguish] . . . .” Because Ms. Lacy had another case pending in the
Sixth Circuit Court, this case was transferred to that court. Following discovery, the
Defendants filed a motion for summary judgment on all of Ms. Lacy’s claims, supported
by a statement of undisputed facts and the affidavits of Mr. Masters and Mr. Rourke. The
trial court granted summary judgment to the Defendants on all of Ms. Lacy’s claims. Ms.
Lacy appeals.

       Ms. Lacy’s appellate brief fails to present a clear issue for our review. Despite
this deficiency, however, we discern that Ms. Lacy raises the following issues: (1)
whether the trial court erred in granting summary judgment to the Defendants, (2)
whether the trial court abused its discretion when it transferred the case to the Sixth
Circuit, and (3) whether the trial court erred in denying Ms. Lacy’s statement of
evidence. As a preliminary matter, we address the issue raised by the Defendants:
whether the appellate brief submitted by Ms. Lacy complies with the applicable rules of
appellate procedure.

                                            II. ANALYSIS

          A. Appellate Brief Requirements

       We begin by noting that Ms. Lacy is a pro se litigant. This Court has stated the
following principles about pro se litigants:

          Parties who decide to represent themselves are entitled to fair and equal
          treatment by the courts. The courts should take into account that many pro
          se litigants have no legal training and little familiarity with the judicial
          system. 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.



1
    This appeal was dismissed as to Mr. Cameron upon his unopposed motion.
                                                  -2-
Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (citations omitted); see
also Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct App. 2003). Additionally, we
allow pro se litigants some latitude in preparing their briefs by applying less exacting
standards than those applied to briefs drafted by lawyers. Young, 130 S.W.3d at 63.

        In addition to arguing that the trial court properly granted summary judgment, the
Defendants assert that we should affirm the trial court’s grant of summary judgment
because Ms. Lacy’s appellate brief fails to comply with the requirements of Rule 27 of
the Tennessee Rules of Appellate Procedure or Rule 6 of the Rules of the Court of
Appeals. Tennessee Rule of Appellate Procedure 27 governs the content of appellate
briefs. Subsection (a) of that rule identifies the requirements for the appellant’s brief and
provides, in pertinent part, as follows:

       The brief of the appellant shall contain under appropriate headings and in
       the order here indicated:

       (1) A table of contents, with references to the pages in the brief;

       (2) A table of authorities, including cases (alphabetically arranged), statutes
       and other authorities cited, with references to the pages in the brief where
       they are cited;
       ....

       (4) A statement of the issues presented for review;

       (5) A statement of the case, indicating briefly the nature of the case, the
       course of proceedings, and its disposition in the court below;

       (6) A statement of facts, setting forth the facts relevant to the issues
       presented for review with appropriate references to the record;

       (7) An argument, which may be preceded by a summary of argument,
       setting forth:

              (A) the contentions of the appellant with respect to the issues
       presented, and the reasons therefor, including the reasons why the
       contentions require appellate relief, with citations to the authorities and
       appropriate references to the record (which may be quoted verbatim) relied
       on; and

             (B) for each issue, a concise statement of the applicable standard of
       review (which may appear in the discussion of the issue or under a separate
       heading placed before the discussion of the issues);

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       (8) A short conclusion, stating the precise relief sought.

Likewise, Rule 6 of the Rules of the Court of Appeals provides, in pertinent part:

       (a) Written argument in regard to each issue on appeal shall contain:

       (1) A statement by the appellant of the alleged erroneous action of the trial
       court which raises the issue and a statement by the appellee of any action of
       the trial court which is relied upon to correct the alleged error, with citation
       to the record where the erroneous or corrective action is recorded.

       (2) A statement showing how such alleged error was seasonably called to
       the attention of the trial judge with citation to that part of the record where
       appellant’s challenge of the alleged error is recorded.

       (3) A statement reciting wherein appellant was prejudiced by such alleged
       error, with citations to the record showing where the resultant prejudice is
       recorded.

       (4) A statement of each determinative fact relied upon with citation to the
       record where evidence of each fact may be found.

       (b) No complaint of or reliance upon action by the trial court will be
       considered on appeal unless the argument contains a specific reference to
       the page or pages of the record where such action is recorded. No assertion
       of fact will be considered on appeal unless the argument contains a
       reference to the page or pages of the record where evidence of such fact is
       recorded.

        We agree that the brief Ms. Lacy submitted fails to comply sufficiently with the
foregoing rules. Although Ms. Lacy’s brief contains several deficiencies, we need not
recite each one. Most importantly, however, Ms. Lacy’s brief fails to make appropriate
references to the record and to cite to relevant authority in support of her arguments.2
Generally, when a party fails to refer properly to the record or to cite to relevant
authority, we consider that issue waived. Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct.
App. 2000). This Court stated in Newcomb v. Kohler Company, 222 S.W.3d 368, 400
(Tenn. Ct. App. 2006), that “[a] skeletal argument that is really nothing more than an
assertion will not properly preserve a claim[.]” We have no duty “to verify unsupported


2
 In reviewing the “Argument” section of Ms. Lacy’s brief, we find that she refers to Tenn. Code Ann. §§
39-13-101—03. These statutes pertain to the criminal offenses of assault, aggravated assault, and
reckless endangerment.
                                                 -4-
allegations in a party’s brief or to research and construct the party’s argument.” Chiozza
v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009).

       Despite the deficiencies in Ms. Lacy’s brief, Rule 2 of the Tennessee Rules of
Appellate Procedure permits this Court to waive these briefing requirements if good
cause exists.3 Chiozza, 315 S.W.3d at 489. We hereby exercise our discretion under
Rule 2 and consider the substance of Ms. Lacy’s appeal because public policy prefers that
courts resolve cases on their merits rather than dismiss them due to procedural
deficiencies. See Norton v. Everhart, 895 S.W.2d 317, 322 (Tenn. 1995).

          B. Motion for Summary Judgment

        An appellate court reviews a trial court’s decision on a motion for summary
judgment de novo, with no presumption of correctness. Rye v. Women’s Care Ctr. of
Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Summary judgment is
appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.”
TENN. R. CIV. P. 56.04. When a party moves for summary judgment but does not have
the burden of proof at trial, the moving party must either submit evidence that
affirmatively “negates an essential element of the nonmoving party’s claim” or
demonstrate “that the nonmoving party’s evidence is insufficient to establish an essential
element of the nonmoving party’s claim.” Tenn. Code Ann. § 20-16-101. Once the
moving party has satisfied this requirement, the nonmoving party “‘may not rest upon the
mere allegations or denials of [its] pleading.’” Rye, 477 S.W.3d at 265 (quoting TENN. R.
CIV. P. 56.06). Rather, the nonmoving party must respond and produce affidavits,
depositions, or responses to interrogatories that “set forth specific facts showing that
there is a genuine issue for trial.” TENN. R. CIV. P. 56.06; see also Rye, 477 S.W.3d at
265. If the nonmoving party fails to respond in this way, “summary judgment, if
appropriate, shall be entered against the [nonmoving] party.” TENN. R. CIV. P. 56.06.

       Following discovery in this case, the Defendants moved for summary judgment
asserting there was no genuine issue of material fact with respect to Ms. Lacy’s
allegations of assault and battery.4 In support of their motion, the Defendants submitted

3
    Rule 2 of the Tennessee Rules of Appellate Procedure provides, in pertinent part:

          For good cause, including the interest of expediting decision upon any matter, the
          Supreme Court, Court of Appeals, or Court of Criminal Appeals may suspend the
          requirements or provisions of any of these rules in a particular case on motion of a party
          or on its motion and may order proceedings in accordance with its discretion . . . .
4
 In their motion for summary judgment, the Defendants argued that Ms. Lacy’s claim that the Defendants
violated her human and civil rights “when Scott Masters [a]ssaulted and beat plaintiff” was not a separate
                                                     -5-
the affidavits of Mr. Masters and Mr. Rourke as proof that affirmatively negated essential
elements of Ms. Lacy’s assault and battery claims. Before we consider the contents of
the affidavits submitted by the Defendants, we must identify the elements of a claim for
assault and those for battery.

       In Hughes v. Metropolitan Government of Nashville and Davidson County, 340
S.W.3d 352, 371 (Tenn. 2011), the Tennessee Supreme Court stated that the intentional
creation of “an apprehension of harm in the plaintiff” constituted the intentional tort of
assault. Thus, for Ms. Lacy to satisfy this definition of assault, she must prove the
Defendants committed an act with the intent to cause her a fear of harm.

        This Court has defined the tort of battery as “an intentional act that causes an
unpermitted, harmful or offensive bodily contact.” Doe v. Mama Taori’s Premium Pizza,
LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906, at *4 (Tenn. Ct. App. Apr. 5,
2001) (citing Cary v. Arrowsmith, 777 S.W.2d 8, 21 (Tenn. Ct. App. 1989);
RESTATEMENT (SECOND) OF TORTS § 18(1) (1965); 7 Stuart M. Speiser, et al., THE
AMERICAN LAW OF TORTS § 26:12 (1990)). Therefore, Ms. Lacy must show that the
Defendants intentionally committed an act that resulted in a harmful or offensive contact.
Contact constitutes “offensive contact” if it “infringes on a reasonable sense of personal
dignity ordinarily respected in a civilized society.” Id. (citing RESTATEMENT (SECOND)
OF TORTS § 19 (1965); 1 Fowler W. Harper, et al., THE LAW OF TORTS § 3.2 (3d ed.
1996); 1 Dan B. Dobbs, THE LAW OF TORTS § 28, at 52-53 (2001)).

       In her complaint, Ms. Lacy alleged that the Defendants “were out of order and
violated the Human and Civil Rights of Plaintiff Lacy, while placing her under fear,
duress and Physical [anguish] when Scott Masters Assaulted and beat plaintiff . . . .” Mr.
Masters states in his affidavit that when he extended his hand to Ms. Lacy at the
completion of the sales transaction, she extended her hand to him and he shook her hand
in a “friendly and gentle manner.” According to Mr. Masters’s affidavit, the only other
physical contact he made with Ms. Lacy occurred when he lightly placed his non-shaking
hand on top of her shaking hand. In regard to the assault claim, Mr. Masters states in his
affidavit that he never threatened or said anything harmful, offensive, or racist to Ms.
Lacy. Mr. Rourke states in his affidavit that he witnessed the interaction between Mr.
Masters and Ms. Lacy, and he corroborates the statements made by Mr. Masters in his
affidavit.

      The evidence submitted by the Defendants negates essential elements of Ms.
Lacy’s assault and battery claims. Specifically, the affidavits negate the intent element of



claim. The Defendants asserted that this was merely a restatement of her assault and battery claims. It
appears that the trial court agreed because it granted summary judgment to the Defendants on all of Ms.
Lacy’s claims.
                                                 -6-
the assault claim and the harmful or offensive contact element of the battery claim.5
Because the Defendants submitted evidence negating essential elements of Ms. Lacy’s
claims, the burden shifted to her to “set forth specific facts” demonstrating that a genuine
issue existed for trial. TENN. R. CIV. P. 56.06.

        Ms. Lacy filed a response to the Defendants’ statement of undisputed facts but
failed to cite to the record to support each disputed fact, as is required by Rule 56. See
TENN. R. CIV. P. 56.03. She also filed a response to the affidavits of Mr. Masters and Mr.
Rourke. Ms. Lacy, however, failed to produce any affidavits, depositions, or responses to
interrogatories setting forth specific facts that showed a genuine issue existed for trial.
Therefore, her response failed to comply with the requirements of Rule 56 and the facts
supporting the Defendants’ motion for summary judgment remained undisputed.
Accordingly, we conclude that the trial court did not err in granting summary judgment to
the Defendants.

        C. Transfer to the Sixth Circuit

       Ms. Lacy contends that the trial court erred in transferring the case from the First
Circuit to the Sixth Circuit for Davidson County. She further contends that the transfer to
the Sixth Circuit prejudiced her because she could not “receive a fair trial with that court”
because it favored the Defendants. Generally, in civil cases, a trial court’s transfer of a
case is considered a discretionary decision. Claborn v. Claborn, No. E2014-01683-
COA-R3-CV, 2015 WL 5692547, at *4 (Tenn. Ct. App. Sept. 29, 2015); see also Tenn.


5
  Defendants argue that the affidavits also negate essential elements of both assault and battery as found in
the Tennessee Civil Pattern Jury Instructions (“T.P.I.”). The T.P.I. defines assault as follows:

        An assault consists of two elements:

        1. An intentional attempt or the unmistakable appearance of an intentional attempt to do
        harm to, or to frighten, another person; and

        2. The present ability or the unmistakable appearance of the present ability to do that
        harm or to cause that fright.

8 Tenn. Prac. Pattern Jury Instr. T.P.I.-Civ. 8.01 (2014 ed.). In regard to battery, the T.P.I. provides:

        A battery is any intentional, unlawful, and harmful [or offensive] physical contact by one
        person with another person.

        The intent required for a battery is not an intent to cause harm. It is an intent to do the act
        that causes the harm.

8 Tenn. Prac. Pattern Jury Instr. T.P.I.-Civ. 8.02 (2014 ed.).


                                                    -7-
Code Ann. § 16-2-107.6 We will uphold a trial court’s discretionary decision absent an
abuse of discretion. See Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). An abuse
of discretion only occurs when a trial court “‘applie[s] an incorrect legal standard, or
reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the
party complaining.’” Id. (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

       According to the order transferring the case, the trial court exercised its discretion
to transfer the case to the Sixth Circuit “in the interest of judicial economy” because Ms.
Lacy had another case pending in the Sixth Circuit.7 At the hearing on the motion for
summary judgment, the trial court explained to Ms. Lacy that her cases were
“consolidated in the Sixth Circuit Court because all of your cases carry basically, the
same allegation. . . . You enter into a location, and without explanation and without
cause, suddenly people start beating on you . . . .”

       Our examination of the record reveals no evidence that the trial court’s decision
was unreasonable. Further, the record contains no evidence that the Sixth Circuit Court
treated Ms. Lacy unfairly. The court granted summary judgment to the Defendants
because Ms. Lacy failed to comply with the requirements of Rule 56, not because it
favored the Defendants. Ms. Lacy’s status as a pro se litigant does not excuse her from
complying with the requirements of Rule 56. The trial court merely required her to
observe the same substantive and procedural rules that a represented party must observe.
Accordingly, we conclude that the trial court did not abuse its discretion when it
transferred the case to the Sixth Circuit Court.

          D. Statement of Evidence

        Lastly, Ms. Lacy contends that the trial court erred when it denied her proposed
statement of evidence. Tennessee Rule of Appellate Procedure 24(c) directs an appellant
to submit a statement of evidence “[i]f no stenographic report, substantially verbatim
recital or transcript of the evidence or proceedings is available” and the statement
conveys “a fair, accurate and complete account of what transpired with respect to those
issues that are the bases of appeal.” Subsection (b) of Rule 24 requires a transcript be
prepared “if a stenographic report or other contemporaneously recorded, substantially
6
    Tennessee Code Annotated section 16-2-107 provides, in pertinent part:

          In judicial districts that . . . have more than one (1) division of circuit or chancery court, if
          a civil cause of action is filed in the improper court or the improper division of court
          within the judicial district, upon the motion of either party, or upon the court’s own
          motion, the civil cause of action may be transferred to the proper court or division within
          such district.
7
  Judicial economy is defined as “[e]fficiency in the operation of the courts and the judicial system; esp.,
the efficient management of litigation so as to minimize duplication of effort and to avoid wasting the
judiciary’s time and resources.” BLACK’S LAW DICTIONARY (10th ed. 2014).
                                                       -8-
verbatim recital of the evidence or proceedings is available.” The trial court denied Ms.
Lacy’s proposed statement of evidence because it found that an official audio/visual
record was available that provided a more accurate account and that the Defendants’
transcription of the proceedings was acceptable for purposes of appellate review. The
trial court’s ruling is consistent with the requirements of Rule 24(b). Accordingly, we
conclude that Ms. Lacy’s argument on this issue is without merit.

                                   III. CONCLUSION

       The judgment of the trial court is affirmed. Costs of appeal are assessed against
the appellant, Deborah Lacy, for which execution may issue if necessary.


                                                 ________________________________
                                                 ANDY D. BENNETT, JUDGE




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