IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned On Briefs May 20, 2015
JEFFERY G. DOUGLAS v. STATE OF TENNESSEE, ET AL.
Direct Appeal from the Circuit Court for Madison County
No. C12278 Paul G. Summers, Judge
No. W2014-00831-COA-R3-CV – Filed July 14, 2015
The trial court granted motions to dismiss and for summary judgment in favor of
defendants. Plaintiff/Appellant appealed. Due to the deficiencies in Appellant‟s brief on
appeal, we conclude that Appellant waived consideration of any issues on appeal and
hereby dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.
Jeffery G. Douglas, Tiptonville, Tennessee, Pro Se.
Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor
General, and Heather C. Ross, Senior Counsel, Nashville, Tennessee, for the appellees,
State of Tennessee - Civil, Judge Donald H. Allen, District Attorney General James G.
Woodall, Assistant District Attorney General Shaun A. Brown, and Assistant Public
Defender Gregory D. Gookin.
Matthew R. Courtner, Jackson, Tennessee, for the appellee, Danielle Jones, Jackson
Police Department.
Timothy G. Wehner and J. Caleb Meriwether, Jackson, Tennessee, for the appellee, Lisa
Piercey, M.D.
MEMORANDUM OPINION1
I. Facts & Procedural History
Plaintiff/Appellant Jeffery G. Douglas was convicted of rape and sexual battery by
a Madison County jury. His conviction was affirmed by the Tennessee Court of Criminal
Appeals. See State v. Douglas, No. W2010-00986-CCA-R3-CD, 2011 WL 915052
(Tenn. Ct. Crim. App. Mar. 16, 2011), perm. app. denied (Tenn. May 25, 2011). After
the Tennessee Supreme Court declined to hear Appellant‟s criminal appeal, he filed the
underlying action against the State of Tennessee, Madison County Circuit Court Judge
Donald H. Allen, thirteen “Jane/John Doe” jurors, the District Attorney General, the
Assistant District Attorney General, the Public Defender (collectively, “State
defendants”), Danielle Jones, who was a Jackson Police Department investigator, the
victim, the victim‟s mother, a witness for the victim, and Dr. Lisa Piercey, who was also
a witness for the State.2 Appellant‟s complaint, although far from a model of clarity,
asserts that the defendants “having been guilty of the following wrongs, all which
proximately resulted in torts to Plaintiff: (1) In knowingly or negligently represented
malicious prosecution, (2) In knowingly or negligently failure to disclose the truth, (3)
Emotional Distress, (4) Psychological Injuries, (5) Intangible, (6) Loss of Society
Damages, (7) Actual Damages.” The complaint goes on to include words such as
“extortion,” “intentional or reckless infliction of emotional distress,” and “conspiracy.”
However, the complaint does not contain a single fact underlying Appellant‟s claims.
The case was removed to the United States District Court for the Western District
of Tennessee and was then remanded back to the Madison County Circuit Court on or
about September 5, 2013. On October 3, 2013, the State defendants filed a Motion to
Dismiss arguing, among other things, immunity, failure to state a claim upon which relief
may be granted, and expiration of the one-year statute of limitation. On October 8, 2013,
Danielle Jones filed a motion for summary judgment and asserted, among other things,
failure to assert “facts that articulate a claim for relief,” expiration of the one-year statute
of limitations, qualified immunity, and failure to state a claim for relief. On October 11,
2013, Dr. Piercey filed a Motion to Dismiss and/or for Summary Judgment. On October
17, 2013, Appellant filed a two page “Counter-Claim Response to All Defendants Motion
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Rule 10 of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may
affirm, reverse or modify the actions of the trial court by memorandum opinion when a
formal opinion would have no precedential value. When a case is decided by
memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall not be
published, and shall not be cited or relied on for any reason in any unrelated case.
2
The record indicates that the jurors, the victim, the victim‟s mother, and one of the victim‟s witnesses in
the criminal proceeding were never served with process.
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to Dismiss and/or for Summary Judgment Lisa Piercey‟s Motion Filed Oct. 11, 2013.”
Appellant‟s October 17, 2013 filing contained no facts and did not respond to the legal
arguments raised by the defendants.
On April 11, 2014, after numerous filings from Appellant, the trial court entered
an “Order Granting Motions for Summary Judgment and Dismissal.” The trial court
noted that Appellant failed to “offer sufficient factual allegations necessary to support his
claims.” The court also determined that “[t]he complaint articulates no cognizable action
for relief and, at most, provides legal elements or conclusory statements couched as
facts.” Nonetheless, the trial court analyzed the defenses raised by the defendants and
determined that the Appellant‟s complaint was filed outside the applicable statute of
limitation, that the complaint failed to establish essential elements and alleged non-
existent causes of action, and that the State defendants enjoy immunity from suit.
Appellant timely appealed.
II. Discussion
Our ability to review the merits of this appeal is substantially hindered by the state
of the brief submitted by Appellant. Briefs submitted to the Tennessee Court of Appeals
are governed by Rule 27 of the Tennessee Rules of Appellate Procedure, which provides:
(a) Brief of the Appellant. 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;
(3) A jurisdictional statement in cases appealed to the
Supreme Court directly from the trial court indicating briefly the
jurisdictional grounds for the appeal to the Supreme Court;
(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
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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);
(8) A short conclusion, stating the precise relief
sought.
The brief submitted by Appellant fails to comply with these requirements. It does
not contain a table of contents, a table of authorities, a statement of the case, a statement
of facts with references to the record, or an argument section containing references to the
record or an applicable standard of review. On page thirteen of his seventeen-page brief,
Appellant admittedly raises the following five issues:
1. Whether, based on the separation of doctrine causes deliberate
indifference,
2. Whether, the Court erred in summary judgement [sic] and dismissal of
Petitioner’s claim,
3. Whether, the Court erred in declining to hold trail [sic] by jury upon
proper and timely request,
4. Whether, the Court in declining to promulgate a uniform rule assigning
to jury trial as of right, and
5. Whether, the Court would err by declining to apply the doctrine of Res
Ipsa Loquitur Walker v. Bradley County Government, 2014 WL
1493193.
(Emphasis in original.) While Appellant‟s brief includes a litany of case citations, his
brief, much like his original complaint in the trial court, fails to include a single factual
allegation upon which this Court can determine the underlying basis for his claims. In
fact, were it not for Appellees‟ briefs, we would not be able to determine any underlying
context for Appellant‟s lawsuit.
As this Court said in Clayton v. Herron:
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Rule 6 of the Rules of the Court of Appeals of Tennessee requires an
appellate brief to contain a written argument in regard to each issue on
appeal, with a statement of the alleged erroneous action of the trial court, as
well as a specific reference to the record where such action is recorded.
The Rule further provides,
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.
Tenn. R. Ct. App. 6(b).
“„Courts have routinely held that the failure to make appropriate
references to the record and to cite relevant authority in the argument
section of the brief as required by Rule 27(a)(7) constitutes a waiver of the
issue.‟” Forbess v. Forbess, 370 S.W.3d 347, 355 (Tenn. Ct. App. 2011)
(quoting Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000)); see
also Tellico Village Property Owners Ass’n, Inc. v. Health Solutions, LLC,
No. E2012-00101-COA-R3-CV, 2013 WL 362815, at *3 (Tenn. Ct. App.
Jan. 30, 2013) (no perm. app. filed) (quoting Branum v. Akins, 978 S.W.2d
554, 557 n.2 (Tenn. Ct. App. 2001)) (“„Where a party makes no legal
argument and cites no authority in support of a position, such issue is
deemed to be waived and will not be considered on appeal.‟”) In addition,
“Appellants . . . must include in their . . . brief a statement of the issues they
desire to present to the court and an argument with respect to each of the
issues presented.” Craig v. Hodge, 382 S.W.3d 325, 334-335 (Tenn. 2012).
“[A]n issue may be deemed waived when it is argued in the brief but is not
designated as an issue in accordance with Tenn. R. App. P. 27(a)(4).” Id.
(citing ABN AMRO Mortg. Grp., Inc. v. S. Sec. Fed. Credit Union, 372
S.W.3d 121, 132 (Tenn. Ct. App. 2011); Childress v. Union Realty Co., 97
S.W.3d 573, 578 (Tenn. Ct. App. 2002)). “The requirement of a statement
of the issues raised on appeal is no mere technicality.” Owen v. Long Tire,
LLC, No. W2011-01227-COA-R3-CV, 2011 WL 6777014, at *4 (Tenn. Ct.
App. Dec. 22, 2011). The appellee is entitled to fair notice of the appellate
issues so as to prepare his or her response, and more importantly, “this
Court is not charged with the responsibility of scouring the appellate record
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for any reversible error the trial court may have committed.” Id. “It is not
the role of the courts, trial or appellate, to research or construct a litigant‟s
case or arguments for him or her, and where a party fails to develop an
argument in support of his or her contention or merely constructs a skeletal
argument, the issue is waived.” Sneed v. Bd. of Prof’l Responsibility of
Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2010).
Although we realize the “legal naivete” of a pro se litigant, “we must
not allow him an unfair advantage because he represents himself.” Frazier
v. Campbell, No. W2006-00031-COA-R3-CV, 2006 WL 2506706, at *3
(Tenn. Ct. App. Aug. 31, 2006) (citing Irvin v. City of Clarksville, 767
S.W.2d 649, 651-52 (Tenn. Ct. App. 1989)). “Pro se litigants who invoke
the complex and technical procedures of the courts assume a very heavy
burden.” Irvin, 767 S.W.2d at 652. They are entitled to fair and equal
treatment, but they must follow the same substantive and procedural
requirements as a represented party, and they may not shift the burden of
litigating their case to the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d
222, 227 (Tenn. Ct. App. 2000).
“[T]he Supreme Court has held that it will not find this Court in
error for not considering a case on its merits where the plaintiff did not
comply with the rules of this Court.” Bean, 40 S.W.3d at 54-55 (citing
Crowe v. Birmingham & N.W. Ry. Co., 156 Tenn. 349, 1 S.W.2d 781
(1928)). “[A]ppellate courts may properly decline to consider issues that
have not been raised and briefed in accordance with the applicable rules.”
Waters v. Farr, 291 S.W.3d 873, 919 (Tenn. 2009). “We have previously
held that a litigant‟s appeal should be dismissed where his brief does not
comply with the applicable rules, or where there is a complete failure to cite
to the record.” Commercial Bank, Inc. v. Summers, No. E2010-02170-
COA-R3-CV, 2011 WL 2673112, at *2 (Tenn. Ct. App. July 11, 2011).
Clayton v. Herron, No. M2014-01497-COA-R3-CV, 2015 WL 757240, at *2–3,
(Tenn. Ct. App. Feb. 20, 2015) (no perm. app. filed).
This case presents a similar scenario. While Appellant enumerated five issues on
appeal, his brief contains no coherent discussion of those issues, and he provides no
citations to the record to support the issues. After the various Appellees noted the
deficiencies in Appellant‟s brief, Appellant filed “Appellant‟s Additional Pleading to
Original Brief.” This “Additional Pleading” still does not assert any facts supporting his
claimed issues on appeal. Regardless, “[a] reply brief is a response to the arguments of
the appellee. It is not a vehicle for raising new issues.” Owens v. Owens, 241 S.W.3d
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478, 499 (Tenn. Ct. App. 2007) (citing Tenn. R. App. P. 27(c); Denver Area Meat
Cutters & Emp’rs Pension Plan v. Clayton, 209 S.W.3d 584, 594 (Tenn. Ct. App. 2006)).
“A reply brief is limited in scope to a rebuttal of the argument advanced in the appellee‟s
brief.” Clayton, 209 S.W.3d at 594. It would be fundamentally unfair to permit an
appellant to advance new arguments in the reply brief, as the appellee may not respond to
a reply brief. Id.
Because Appellant‟s brief wholly fails to comply with Rule 27‟s provisions
regarding the content of briefs, we decline to examine the merits of any issues on appeal.
Additionally, Tennessee Code Annotated section 27-1-122 allows this Court, sua sponte,
on determination that an appeal is frivolous, to “award just damages against the appellant,
which may include but need not be limited to, costs. . . .” Our review of the record and
Appellant‟s briefing leads us to conclude that this appeal is frivolous. We decline to
award damages against the Appellant; however, we designate it as frivolous for purposes
of Tennessee Code Annotated section 41-21-807(c).
III. Conclusion
For the forgoing reasons, the appeal is dismissed. Costs of this appeal are taxed to
the Appellant, Jeffery G. Douglas. Because Mr. Douglas is proceeding in forma pauperis
in this appeal, execution may issue for costs, if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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