Deborah Lacy v. HCA Tristar Hendersonville Hospital

01/26/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 5, 2017 Session

DEBORAH LACY v.
HCA TRISTAR HENDERSONVILLE HOSPITAL ET AL.

Appeal from the Circuit Court for Sumner County
No. 2013-CV-1319 Joe H. Thompson, Judge

No. M2017-01055-COA-R3-CV

This action, which involves the plaintiff’s claims of assault and battery against her former
co-workers and a medical doctor at the hospital where she was previously employed, is
before this Court on appeal for the second time. See Lacy v. HCA Tristar Hendersonville
Hosp., No. M2015-02217-COA-R3-CV, 2016 WL 4497953 (Tenn. Ct. App. Aug. 25,
2016) (“Lacy I”). The first appeal arose from an involuntary dismissal, pursuant to
Tennessee Rule of Civil Procedure 41.02(2), following the close of the plaintiff’s proof
during a bench trial. The plaintiff, proceeding without benefit of counsel, had filed a
statement of the evidence, which was subsequently stricken from the record by the trial
court upon an objection filed by the defendants. The first appeal came before this Court
without a statement of the evidence in the record. Determining that the trial court had
failed to resolve the parties’ conflicts concerning the plaintiff’s statement of the evidence,
pursuant to Tennessee Rule of Appellate Procedure 24(c) and (e), and that the trial court
had failed to make sufficient factual findings in its final order, this Court vacated the
order of involuntary dismissal and remanded to the trial court for appropriate factual
findings and a resolution of the conflicts concerning the statement of the evidence. Lacy
I, 2016 WL 4497953, at *3. On remand, the defendants submitted a statement of the
evidence, which, upon review, the trial court approved as accurate. The trial court then
entered an order setting forth findings of fact and conclusions of law, determining that the
plaintiff had failed to present proof of causation and damages during the bench trial. The
trial court subsequently entered a final order dismissing the plaintiff’s claims with
prejudice. The plaintiff timely appealed. Discerning no reversible error, we affirm.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
Deborah Lacy, Madison, Tennessee, Pro Se.

Robert E. Boston and Paul Maxwell Smith, III, Nashville, Tennessee, for the appellees,
Denise Dallenbach, Jim Smallwood, Darlene Malone, Beverly Simpson, and Dr. Duane
Edson Harrison.

OPINION

I. Factual and Procedural Background

The plaintiff, Deborah Lacy, was employed as a phlebotomist by Hendersonville
Hospital Corporation (“the Hospital”), from September 10, 2012, through February 18,
2013. On November 18, 2013, Ms. Lacy filed a complaint, naming as a defendant HCA
Tristar Hendersonville Hospital d/b/a Hendersonville HCA Medical Center and Tri
Hendersonville Hospital. In subsequent pleadings, the Hospital clarified its corporate
name as Hendersonville Hospital Corporation. Ms. Lacy also named as defendants five
individual Hospital employees: Denise Dallenbach, Jim Smallwood, Darlene Malone,
Beverly Simpson, and Dr. Duane Edson Harrison (collectively, “Individual Defendants”).
Ms. Lacy filed an amended complaint on November 25, 2013. Alleging that she had
been “struck multiple times by co-workers during her employment” with the Hospital,
Ms. Lacy sought compensatory and punitive damages. See Lacy I, 2016 WL 4497953, at
*1.

The Hospital and Individual Defendants filed an answer on February 3, 2014,
denying all substantive allegations and raising several affirmative defenses. They
concomitantly asserted a counterclaim against Ms. Lacy, alleging slander, libel, and
defamation. Ms. Lacy filed a response and several other pleadings, including a “Motion
for Settlement,” which was denied by the trial court as a pleading that failed to “request
any ascertainable relief” in an order entered on February 24, 2015.

Upon the Hospital’s separate motion, the trial court granted summary judgment in
favor of the Hospital in an order entered July 17, 2015, dismissing Ms. Lacy’s claims
against the Hospital upon concluding that Ms. Lacy’s sole means of remedy against the
Hospital would have been through a workers’ compensation claim. The court designated
this order as final pursuant to Tennessee Rule of Civil Procedure 54.02. Although Ms.
Lacy filed a “response” to the order, she did not file a timely appeal of the judgment in
favor of the Hospital. Accordingly, the Hospital is not involved in the appeal currently
before this Court and was not involved in the first appeal of this matter.

In Lacy I, this Court summarized the remaining proceedings leading to the first
appeal as follows:
2
 The remaining parties proceeded to trial on November 5, 2015.
Following the close of Ms. Lacy’s proof, the remaining defendants
[Individual Defendants] moved for involuntary dismissal of her claims.
The court granted the motion, finding that Ms. Lacy “failed to present any
evidence of any type to support any award of damages for her claims of
assault and battery.” The court’s order included its conclusions of law,
specifically that “Tennessee law requires proof of causation and damages
through competent testimony to be considered by the Court.” From this
decision, Ms. Lacy filed a timely notice of appeal.

Lacy I, 2016 WL 4497953, at *1. In addition, upon Individual Defendants’ motion for
voluntary dismissal of their counterclaims, the trial court dismissed Individual
Defendants’ counterclaims against Ms. Lacy without prejudice. The court’s order
dismissing all claims was entered on November 12, 2015.

On appeal, this Court vacated the trial court’s order dismissing Ms. Lacy’s claims
against Individual Defendants upon determining that the trial court had erred by failing to
(1) resolve the parties’ differences presented regarding a statement of the evidence
presented by Ms. Lacy and (2) make sufficient factual findings supporting its conclusions
of law. Id. at *3. Concerning the disputed statement of the evidence, this Court
explained in pertinent part:

Our Supreme Court interprets the trial court’s role in the resolution
of differences in the statement of the evidence as mandatory. Bellamy v.
Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn.
2009). Further, the Supreme Court reads subsections (c) and (e) of Rule 24
together as requiring the trial judge to, not only rule on objections, but also
to “approve a single statement of the evidence. In so doing, [the trial judge]
should require counsel to consolidate into one instrument all of the
uncontested portions of their respective statements, together with the
Court’s version of any contested matter.” Id. (quoting Vowell v. Vowell,
Lauderdale Eq. No. 2, 1988 WL 104692, at *1 (Tenn. Ct. App. Oct. 10,
1988)).

From the record, we can glean that Ms. Lacy filed a statement of the
evidence on January 11, 2016. [Individual Defendants] filed their
objections, in which they pointed out various deficiencies in the statement
of the evidence. [Individual Defendants] also requested that “the Court
exclude [Ms. Lacy’s] Statement of the Evidence in its entirety from the
record on appeal.” On February 2, 2016, the trial court entered an order
3
 granting [Individual Defendants’] requested relief, and as a result, we do
not have a statement of the evidence.

Id. at *2.

In remanding on this issue, this Court directed as follows:

Under these circumstances, we remand and direct the trial court to
resolve the parties’ conflicts concerning Ms. Lacy’s statement of the
evidence, which may require ordering [Individual Defendants] to submit a
competing statement of the evidence, and to certify and transmit a proper
supplemental record to this Court for resolution of the issues raised in this
appeal. See Tenn. R. App. P. 24(e); see also Bellamy, 302 S.W.3d at 282
(directing trial court to resolve conflicts in competing statements of the
evidence and to transmit a supplemental record to the Court of Appeals). If
neither party has submitted a statement of the evidence that, in the trial
court’s opinion, represents a fair, accurate, and complete account of what
transpired in the trial court, the trial court may give the parties an
opportunity to correct the accuracy of their statements or the trial court may
prepare its own statement of the evidence.

Id. at *3.

Concerning the need for factual findings, this Court determined: “Given our
resolution of the issue concerning the statement of the evidence, we conclude a remand to
permit the trial court to make the necessary findings required by Tennessee Rule of Civil
Procedure 41.02(2) is the appropriate remedy.” Id. In the conclusion of the decision, this
Court specifically noted that the trial court was to make “appropriate factual findings
based on the trial court’s evaluation of the evidence presented by Ms. Lacy at trial on
November 5, 2015 and, if necessary, any appropriate conclusions of law.” Id.; see Tenn.
R. Civ. P. 41.02 (“If the court grants the motion for involuntary dismissal, the court shall
find the facts specially and shall state separately its conclusions of law and direct the
entry of the appropriate judgment.”).

On remand, the trial court entered an order on January 23, 2017, directing
Individual Defendants to “prepare and file a competing statement of the evidence within
thirty (30) days.” The court further directed that “[w]ithin thirty (30) days of submission
of the competing statement of evidence, both parties shall submit proposed findings of
fact and conclusions of law for consideration by the Court.” Individual Defendants filed
a proposed statement of the evidence, which was stamped as “received” by the trial court
clerk’s office on February 22, 2017. In an order entered March 3, 2017, the trial court
4
approved Individual Defendants’ statement of the evidence, and the statement of the
evidence was then stamped as “filed” on the same day as the order, March 3, 2017.1

The trial court subsequently entered “Findings of Fact and Conclusions of Law
Regarding the Grant of Defendants’ Motion for Involuntary Dismissal and Judgment of
Dismissal, with Prejudice” on March 31, 2017. Noting that Ms. Lacy had not presented
any testimony from a competent medical professional regarding the causation of her
alleged injuries, the court determined that the Defendants’ motion for involuntary
dismissal should be granted because Ms. Lacy had failed to present proof of causation
and damages. Finding that Ms. Lacy’s proof presented at trial consisted entirely of her
narrative testimony, the court summarized her testimony as follows:

Lacy testified at trial that she began working at Hendersonville
Medical Center as a phlebotomist on September 11, 2012. The Defendants
also worked at the hospital, except for Dr. Harrison who provided medical
services there.

Lacy testified that on November 19, 2012, Dallenbach beat Lacy in
her right shoulder while Lacy stood at a computer in a hospital lab. After
Dallenbach finished beating Lacy, Lacy testified Smallwood then began to
beat Lacy in the crease of her neck. Neither Dallenbach nor Smallwood
said anything to Lacy during the asserted assaults. There were no
witnesses.

Lacy testified that on January 31, 2013, she was sitting in a chair
beside the door into the main hospital lab when Dallenbach appeared and
started hitting Lacy repeatedly on her right shoulder. Then, when Lacy
walked over to attend to a lab machine, Smallwood struck her on the neck.
Lacy testified she did not know why Dallenbach and Smallwood assaulted
her.

Lacy next testified that sometime in February 2013, Simpson walked
up to Lacy as Lacy approached a patient’s room and beat Lacy in the back
of her neck. Lacy testified Simpson did not say anything and then walked
away.

1
Also on March 3, 3017, the trial court entered an order setting aside a prior order entitled, “Findings of
Fact and Conclusions of Law Regarding the Grant of Defendants’ Motion for Involuntary Dismissal and
Judgment of Dismissal with Prejudice,” it had entered on March 2, 2017. The court noted that the March
2 order had been prematurely issued “prior to the expiration of the time allotted for both parties to submit
proposed findings of fact and conclusions of law.”
5
 Lacy testified that later on the same unknown day in February, 2013,
Malone came up behind Lacy when Lacy was working on a computer and
patted her. Lacy said she did not think Malone hit her.

Lacy testified that at another unknown time in February, 2013, she
walked out of the emergency room and Dr. Harrison was standing near a
back door speaking on his cell phone. Lacy acknowledged him and as Lacy
was walking away, Dr. Harrison hit her in the back of her neck as hard as
he could. Lacy turned around and looked at Dr. Harrison, who remained on
the phone. Lacy walked out. There were no witnesses.

Lacy testified that the next time she was in the emergency room,
about February 3 or 4, 2013, Dr. Harrison stepped over toward her, blocked
her way and stared at her.

Lacy testified she quit working at the hospital by February 13 or 14,
2
2013.

Lacy confirmed in response to a question from the Court that her
claim was the Defendants assaulted her and the assaults injured her,
requiring a shoulder surgery and a pending neck surgery.

While the foregoing recitation is brief, it is the substance of Lacy’s
relevant testimony. Her testimony was, respectfully, difficult to follow and
included substantial immaterial comments or other matters of unknown
purpose. The Court has done its best to recount Lacy’s proof.

(Paragraph numbering omitted.)

The trial court entered an order on May 17, 2017, granting Individual Defendants’
Rule 41.02 motion for involuntary dismissal, dismissing Ms. Lacy’s complaint and
amended complaint with prejudice, and specifically adopting its March 31, 2017 findings
of fact and conclusions of law. Ms. Lacy timely appealed. She subsequently filed
various documents with the trial court.

II. Issues Presented

Ms. Lacy presents two issues on appeal, which we have restated as follows:

2
A separation notice filed as an exhibit to the Hospital’s motion for summary judgment reflected a
separation date of February 18, 2013.
6
 1. Whether the trial court erred by approving the statement of the
evidence presented by Individual Defendants pursuant to Tennessee
Rule of Appellate Procedure 24(c) and (e).

2. Whether the trial court erred on remand from this Court by failing to
timely consider evidence presented by Ms. Lacy.

In addition, Individual Defendants have raised the following threshold issue, which we
have similarly restated as follows:

3. Whether Ms. Lacy’s issues should be deemed waived and this appeal
dismissed based on Ms. Lacy’s alleged failure to comply with
Tennessee Rule of Appellate Procedure 27(a).

III. Standard of Review

We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). “In order for the evidence to preponderate against the trial court’s findings of fact,
the evidence must support another finding of fact with greater convincing effect.” Wood
v. Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). We review questions of law de
novo with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint v.
Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see In re Estate of Haskins, 224
S.W.3d 675, 678 (Tenn. Ct. App. 2006). The trial court’s determinations regarding
witness credibility are entitled to great weight on appeal and shall not be disturbed absent
clear and convincing evidence to the contrary. See Morrison v. Allen, 338 S.W.3d 417,
426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

Our review of the trial court’s decision to grant a Tennessee Rule of Civil
Procedure 41.02 motion for involuntary dismissal is de novo upon the record, with a
presumption of correctness as to the trial court’s findings of fact unless the
preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Boyer v.
Heimermann, 238 S.W.3d 249, 254 (Tenn. Ct. App. 2007), perm. app. denied (Tenn.
Aug. 13, 2007) (“This standard is appropriate because the trial court has used the same
reasoning to dispose of the motion that it would have used to make a final decision at the
close of all the evidence.”). As this Court has explained:

When a motion for involuntary dismissal is made at the conclusion
of the plaintiff’s proof in a bench trial, “the trial court must impartially
weigh the evidence as though it were making findings of fact and
7
 conclusions of law after all the evidence has been presented.” Building
Materials Corp. v. Britt, 211 S.W.3d 706, 711 (Tenn. 2007); Thompson v.
Hensley, 136 S.W.3d [925,] 929 [(Tenn. Ct. App. 2003)]; see also Burton v.
Warren Farmers Coop., 129 S.W.3d [513,] 520 [(Tenn. Ct. App. 2002)]. If
a plaintiff has failed to demonstrate her right to relief by a preponderance of
the evidence under the facts as found by the court and pursuant to the
applicable law, then the case should be dismissed. Building Materials
Corp. v. Britt, 211 S.W.3d at 711; Burton v. Warren Farmers Coop., 129
S.W.3d at 520-21.

Boyer, 238 S.W.3d at 254.

Furthermore, we recognize that Ms. Lacy is a pro se litigant and respect her
decision to proceed self-represented. With regard to self-represented litigants, this Court
has explained:

Pro se litigants who invoke the complex and sometimes technical
procedures of the courts assume a very heavy burden. Gray v. Stillman
White Co., 522 A.2d 737, 741 (R.I. 1987). Conducting a trial with a pro se
litigant who is unschooled in the intricacies of evidence and trial practice
can be difficult. Oko v. Rogers, 125 Ill. App. 3d 720, 81 Ill. Dec. 72, 75,
466 N.E.2d 658, 661 (1984). Nonetheless, trial courts are expected to
appreciate and be understanding of the difficulties encountered by a party
who is embarking into the maze of the judicial process with no experience
or formal training.

Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988), perm. app.
denied (Tenn. Jan. 3, 1989). Parties proceeding without benefit of counsel are “entitled
to fair and equal treatment by the courts,” but we “must not excuse pro se litigants from
complying with the same substantive and procedural rules that represented parties are
expected to observe.” Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003).
This Court must “be mindful of the boundary between fairness to a pro se litigant and
unfairness to the pro se litigant’s adversary.” Id. Furthermore, “[p]ro se litigants are not .
. . entitled to shift the burden of litigating their case to the courts.” See Chiozza v.
Chiozza, 315 S.W.3d 482, 487 (Tenn. Ct. App. 2009), perm. app. denied (Tenn. May 20,
2010) (quoting Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000)).

IV. Compliance with Tennessee Rule of Appellate Procedure 27(a)

As a threshold issue, Individual Defendants contend that Ms. Lacy’s principal
brief on appeal is so “replete with deficiencies” that the issues she has raised should be
8
deemed waived and her appeal dismissed for failure to comply with Tennessee Rule of
Appellate Procedure 27(a), which states in pertinent part:

(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;

***

(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);

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

9
As Individual Defendants also note, Tennessee Court of Appeals Rule 6(b) similarly
provides in pertinent part:

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.

As this Court has previously explained with regard to deficiencies in an appellate
brief:

Our 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 described by Rule 27(a)(7) constitutes a waiver of the
issue[s] [raised].” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000).
In Bean, we went on to hold that “an issue is waived where it is simply
raised without any argument regarding its merits.” Id. at 56; see also
Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)
(holding that the failure of a party to cite to any authority or to construct an
argument regarding his or her position on appeal constitutes waiver of that
issue). As we stated in Newcomb, a “skeletal argument that is really
nothing more than an assertion will not properly preserve a claim.”
Newcomb, 222 S.W.3d at 400. It is not the function of this Court to verify
unsupported allegations in a party’s brief or to research and construct the
party’s argument. Bean, 40 S.W.3d at 56.

Despite the fact that [the appellant’s] brief is woefully inadequate,
there are times when this Court, in the discretion afforded it under Tenn. R.
App. P. 2, may waive the briefing requirements to adjudicate the issues on
their merits.

Chiozza, 315 S.W.3d at 489.

Individual Defendants specifically argue that Ms. Lacy has (1) erroneously relied
on factual premises not contained within the statement of the evidence approved by the
trial court, (2) failed to cite to the record, and (3) failed to cite authorities. In her
principal brief, Ms. Lacy’s sole citation to authority is to a criminal statute, and she has
included no citations to the record. Ms. Lacy has included citations to legal authorities in
her reply brief filed with this Court. However, reasons for the specific citations are
10
unclear in that the propositions within the cases cited are unrelated to the arguments
presented. Ms. Lacy does, however, adhere to the basic sections required in a brief by
Tennessee Rule of Appellate Procedure 27(a) and has set forth issues that, while
somewhat jumbled, can be evaluated by this Court. We determine that although Ms.
Lacy has failed to wholly comply with Tennessee Rule of Appellate Procedure 27(a) and
Tennessee Court of Appeals Rule 6, this is an appropriate case in which to exercise our
discretion to address this appeal on the merits. See Tenn. R. App. P. 2.

V. Statement of the Evidence

Ms. Lacy asserts that the trial court did not follow this Court’s mandate on remand
because the trial court adopted Individual Defendants’ statement of the evidence without
properly considering her statement of the evidence. Upon thorough review, we determine
that the trial court properly followed the mandate of this Court and did not abuse its
discretion in approving Individual Defendants’ statement of the evidence.

Tennessee Rule of Appellate Procedure 24(c) provides:

(c) Statement of the Evidence When No Report, Recital, or
Transcript Is Available. If no stenographic report, substantially
verbatim recital or transcript of the evidence or proceedings is
available, or if the trial court determines, in its discretion, that the
cost to obtain the stenographic report in a civil case is beyond the
financial means of the appellant or that the cost is more expensive
than the matters at issue on appeal justify, and a statement of the
evidence or proceedings is a reasonable alternative to a stenographic
report, 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. The statement, certified by the appellant or
the appellant’s counsel as an accurate account of the proceedings,
shall be filed with the clerk of the trial court within 60 days after
filing the notice of appeal. Upon filing the statement, the appellant
shall simultaneously serve notice of the filing on the appellee,
accompanied by a short and plain declaration of the issues the
appellant intends to present on appeal. Proof of service shall be filed
with the clerk of the trial court with the filing of the statement. If the
appellee has objections to the statement as filed, the appellee shall
file objections thereto with the clerk of the trial court within fifteen
days after service of the declaration and notice of the filing of the
11
 statement. Any differences regarding the statement shall be settled
as set forth in subdivision (e) of this rule.

Ms. Lacy had filed a statement of the evidence in preparation for the first appeal of
this action before this Court. See Lacy I, 2016 WL 4497953, at *2. Individual
Defendants subsequently filed a motion objecting to Ms. Lacy’s statement, asserting that
it contained allegations and argument rather than a narrative of the proceedings. Finding
the motion well taken, the trial court granted Individual Defendants’ request to exclude
Ms. Lacy’s statement of the evidence from the record. On appeal, this Court determined
that the trial court had erred by failing to resolve the differences between the parties
concerning the statement of the evidence as set forth in Tennessee Rule of Appellate
Procedure 24(e), which provides:

e) Correction or Modification of the Record. If any matter properly
includable is omitted from the record, is improperly included, or is
misstated therein, the record may be corrected or modified to
conform to the truth. Any differences regarding whether the record
accurately discloses what occurred in the trial court shall be
submitted to and settled by the trial court regardless of whether the
record has been transmitted to the appellate court. Absent
extraordinary circumstances, the determination of the trial court is
conclusive. If necessary, the appellate or trial court may direct that a
supplemental record be certified and transmitted.

(Emphasis added.) In this regard, this Court in Lacy I specifically directed the trial court
on remand to “resolve the parties’ conflicts concerning Ms. Lacy’s statement of the
evidence, which may require ordering [Individual Defendants] to submit a competing
statement of the evidence, and to certify and transmit a proper supplemental record to this
Court for resolution of the issues raised in this appeal.” Lacy I, 2016 WL 4497953, at *3.
We note that the statement of the evidence with which Individual Defendants’ statement
would be “competing” was the one originally filed by Ms. Lacy and rejected by the trial
court as not representative of what had occurred during the proceedings.

On remand, the trial court, in an order entered January 23, 2017, directed
Individual Defendants to file a competing statement of the evidence within thirty days of
the order’s entry, which they did. This statement of the evidence was stamped as
“received” by the trial court on February 22, 2017, but was stamped as “filed” on the date
that the trial court entered the order approving it, March 3, 2017.

Ms. Lacy claims to have filed an additional statement of the evidence on March
23, 2017, that was “stamped incorrectly” as filed on May 25, 2017. The filing at issue,
12
which is entitled, “EVIDENCE THAT IS OLD AND ONE NEW PIECE THAT WAS
SENT AS PLAINTIFF WAS ASK TO SEND IN EVIDENCE IN THE APPEAL
PROCESS,” appears in the record subsequent to the trial court’s May 17, 2017 final order
and Ms. Lacy’s notice of appeal. It is not clear how this document could have operated
as a statement of the evidence because Ms. Lacy repeats in the document and attachments
her assertions regarding the allegations rather than presenting a narrative of what
occurred during the November 5, 2015 hearing. She also attached to the document
medical records not admitted into evidence during the bench trial. Ms. Lacy filed
additional similar pleadings as well, entitled variously, “Facts” and “Found evidence[]
turned in to the Sumner County Trial Court Judge,” that were date-stamped May 22,
2017.

We note that the trial court had reached its decision approving Individual
Defendants’ statement of the evidence, as opposed to Ms. Lacy’s original statement of
the evidence, in an order entered March 3, 2017, twenty days prior to when Ms. Lacy
maintains that she filed the document that she insists should have been considered.
Moreover, by approving Individual Defendants’ statement of the evidence, the trial court
impliedly adopted the statement as a “fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal” in contrast to the
statement previously submitted by Ms. Lacy. See Tenn. R. App. P. 24(c). We find no
extraordinary circumstances that would warrant disturbing the trial court’s determination
in this regard. See id. at 24(e). Ms. Lacy is not entitled to relief on this issue.

VI. Consideration of Evidence Presented on Remand

Ms. Lacy also argues that the trial court erred by failing to consider new evidence
she attempted to present on remand, specifically the medical records she filed
concomitantly with and subsequent to her notice of appeal. Ms. Lacy appears to
misunderstand this Court’s direction on remand for the trial court to resolve differences
regarding the statement of the evidence presented during the November 5, 2015 trial and
to make specific factual findings regarding that proceeding. See Lacy I, 2016 WL
4497953, at *3. The trial court was directed by this Court to clarify what had occurred
during the bench trial on November 5, 2015, as well as its own factual findings, to enable
this Court to properly review the trial court’s grant of Individual Defendants’ motion for
a Rule 41.02 involuntary dismissal. The trial court properly declined to consider any
additional evidence that had not been presented during the bench trial.

Ms. Lacy also asserts that the trial court erred in failing to inform her regarding the
status of subpoenaed witnesses who did not appear to testify during the bench trial. We
note, however, that it does not appear that any of the witnesses that Ms. Lacy was
attempting to subpoena would have testified as to medical causation of her injuries. Ms.
13
Lacy takes great issue with the fact that none of the Individual Defendants were required
to testify, but in so asserting, she misapprehends the function of a Rule 41.02 dismissal at
the close of the plaintiff’s proof. Ms. Lacy did not call any of the Individual Defendants
as witnesses before closing her own proof. See Boyer, 238 S.W.3d at 254 (“If a plaintiff
has failed to demonstrate her right to relief by a preponderance of the evidence under the
facts as found by the court and pursuant to the applicable law, then the case should be
dismissed.”). Upon careful review, we determine that the evidence presented during the
bench trial does not preponderate against the trial court’s decision to dismiss with
prejudice Ms. Lacy’s claims against Individual Defendants.

VII. Conclusion

For the reasons stated above, we affirm the trial court’s judgment. This case is
remanded to the trial court, pursuant to applicable law, for enforcement of the trial court’s
judgment and collection of costs assessed below. The costs on appeal are assessed
against the appellant, Deborah Lacy.

_________________________________
THOMAS R. FRIERSON, II, JUDGE

14