Deborah Lacy v. Vanderbilt University Medical Center ( 2019 )

04/01/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 5, 2019 Session
DEBORAH LACY v VANDERBILT UNIVERSITY MEDICAL CENTER ET
AL.
Appeal from the Circuit Court for Davidson County
No. 15C-3855 Thomas W. Brothers, Judge
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No. M2018-00832-COA-R3-CV
___________________________________
The trial court held that Appellant failed to meet her burden to prove her claims of assault
and battery. Appellant appealed. Due to the deficiencies in Appellant’s appellate brief,
we do not reach Appellant’s substantive issues and dismiss the appeal.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court is Dismissed.
KENNY ARMSTRONG, 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, appellant, Pro Se.
Sara F. Reynolds and Ashley B. Tipton, Nashville, Tennessee, for the appellees,
Vanderbilt University Medical Center, Bethany Bowman, Gerimiha Emerson.
OPINION
I. Background
This is the second appeal of this case. As set out in our previous opinion, Lacy v.
Vanderbilt Univ. Med. Ctr., No. M2016-02014-COA-R3-CV, 2017 WL 6273316, at *1
(Tenn. Ct. App. May 4, 2017) (“Lacy I”), Deborah Lacy (“Appellant”) filed suit against
Vanderbilt University Medical Center (“VUMC”), Bethany Bowman, and Geremiha
Emerson, M.D. (together the “Appellees”). Appellant’s complaint filed on October 21,
2015 averred that Appellees beat her during the course of her admission to the emergency
room at VUMC on October 22, 2014. Appellant also alleged that she had been
misdiagnosed. Appellees filed a motion to dismiss on grounds that Appellant failed to
satisfy the pre-suit notice and certificate of good faith requirements for healthcare
liability actions. In Lacy I, we affirmed the trial court’s dismissal of Appellant’s health
care liability claims, but reversed the trial court’s dismissal of her non-health care
liability claims, i.e., assault and battery claims. Id. at *8.
Following remand from this Court, Ms. Lacy propounded discovery on Appellees.
As is relevant to this appeal, Ms. Lacy asked Appellees for the names of “Chelsea the
care giver” and the “transport person,” who allegedly transported Lacy from the
emergency room to the radiology department on October 22, 2014. Appellees notified
Ms. Lacy that Chelsea Lampley was the care giver. However, Appellees were unable to
procure the name of the transport person. Nonetheless, Ms. Lacy filed a motion to
compel the identity of the transport person. The trial court denied the motion to compel
after determining that Appellees had taken adequate steps to identify the person.
VUMC filed a motion for summary judgment arguing that it could not be held
liable for the alleged beatings by its employees as such action would be outside the scope
of their employment, and, therefore, respondeat superior did not apply. The trial court
granted the motion. At the hearing on VUMC’s summary judgment motion, the parties
discussed that Appellees Bowman and Emerson were the only remaining defendants
because they were the only defendants who had been named in the complaint and served
with process. Ms. Lacy then moved to amend her complaint to add Chelsea Lampley and
Steven Seaman. Appellees opposed the motion to amend. The trial court ultimately
denied Ms. Lacy’s motion finding that amendment would be futile because all claims
against Lampley and Seaman were time-barred.
The case proceeded to hearing on May 21, 2018. Ms. Lacy was the only witness
to testify during her case in chief. During her testimony, Ms. Lacy offered a packet of
documents into evidence. The documents included medical records from her Vanderbilt
admission on October 22, 2014; medical records and photographs relating to alleged
assaults by other health care providers; a December 2014 letter from Vanderbilt’s Office
of Patient Relations; written discovery responses; and other medical records. Appellees
opposed admission of these items on grounds of relevance and hearsay. The trial court
sustained Appellees’ objections. On May 31, 2018, following the hearing, the trial court
entered its order. The trial court held that Ms. Lacy failed to meet her burden to prove
her claims of assault and battery. Ms. Lacy appeals.
II. Discussion
Ms. Lacy raises several issues for review. However, her statement of the issues is
rambling and largely incoherent. Because Ms. Lacy’s brief fails to comport with the
requirements of the Tennessee Rules of Appellate Procedure, we do not reach her
substantive issues.
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We are cognizant that Ms. Lacy is proceeding pro se in this appeal. Courts should
take into account that many pro se litigants have no legal training and little familiarity
with the judicial system. Garrard v. Tenn. Dep’t of Corr., No. M2013-01525-COA-R3-
CV, 2014 WL 1887298, at *3 (Tenn. Ct. App. May 8, 2014)(internal citations omitted).
Therefore, the courts give pro se litigants who are untrained in the law a certain amount
of leeway in drafting their pleadings and briefs. Whitaker v. Whirlpool Corp., 32 S.W.3d
222, 227 (Tenn. Ct. App. 2000); Paehler v. Union Planters Nat’l Bank, Inc., 971
S.W.2d 393, 397 (Tenn. Ct. App. 1997). “Pro se litigants who invoke the complex and
technical procedures of the courts assume a very heavy burden.” Irvin v. City of
Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1989). While a party who chooses to
represent himself or herself is entitled to the fair and equal treatment of the courts,
Hodges v. Tenn. Att’y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000), “[p]ro se
litigants are not . . . entitled to shift the burden of litigating their case to the courts.”
Whitaker, 32 S.W.3d at 227. Instead, pro se litigants are held to the same procedural and
substantive standards to which lawyers must adhere. Diggs v. Lasalle Nat. Bank Assoc.,
et al., 387 S.W.3d 559, 563 (Tenn. Ct. App. 2012); Brown v. Christian Bros. University,
No. W2012-01336-COA-R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5,
2013), perm. app. denied (Tenn. Jan. 15, 2014).
Here, Appellees argue that Ms. Lacy waived the issues raised in her appeal by
failing to comply with the requirements of Tennessee Rule of Appellate Procedure 27 and
Tennessee Court of Appeals Rule 6. According to Appellees, Appellant’s brief is
incoherent and “the only discernable portion of [Appellant’s] brief is the complete lack of
citations to the record or relevant legal authority.” The contents of appellate briefs are
governed by Rule 27 of the Tennessee Rules of Appellate Procedure. According to the
rule, the Appellant’s brief shall contain:
(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);
Tenn. R. App. P. 27(a). Additionally, Rule 6 of the Tennessee Rules of the Court of
Appeals 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
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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).
In this case, Ms. Lacy fails to cite to legal authority in support of her arguments as
required by Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure. Ms. Lacy’s
brief on appeal only cites two cases in the argument section of her brief and even then
Appellant fails to provide any analysis of the cases or discuss how they relate to her
position. The only statute mentioned in Ms. Lacy’s argument is Tennessee Code
Annotated section 28-3-104 which designates the commencement dates for tort actions
after the cause of action accrued. These meager citations are not sufficient to overcome
the lack of citation to any other authority. Furthermore, Ms. Lacy includes only sporadic
citations to the trial exhibits and no citations to the technical record or the video trial
recording. Ms. Lacy’s brief is largely incoherent as she neither develops her arguments
nor cites authority to support her positions. Tenn. R. App. P. 27(a)(7); Branum v. Akins,
978 S.W.2d 554, 557 n. 2 (Tenn. Ct. App. 1998) (internal citations omitted). (“Where a
party makes no legal argument and cites no authority in support of a position, such issue
is deemed waived and will not be considered on appeal.”) 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 ).
Because Ms. Lacy fails to comply with the basic briefing requirements set out in
the Tennessee Rules of Appellate Procedure, this Court cannot ascertain the gravamen of
her arguments. As this Court has previously stated:
“[T]his Court is not charged with the responsibility of scouring the
appellate record for any reversible error the trial court may have
committed.” [Owen v. Long Tire, LLC, No. W2011-01227-COA-R3-CV,
2011 WL 6777014, at *4 (Tenn. Ct. App. Dec. 22, 2011)]. “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).
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“[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). Ms. Lacy has extensive experience with
this Court as she has filed no fewer than eleven (11) appeals since November 2015.1 In
two prior appeals, this Court warned Appellant that she is required to comply with Tenn.
R. App. P. 27 but then proceeded to address the case on the merits despite the procedural
shortcomings in her brief. See Lacy v. HCA Tristar Hendersonville Hosp., 2018 WL
575346 at *5-6 (Tenn. Ct. App. Jan. 26, 2018); Lacy v. Hallmark Volkswagen, 2017 WL
2929502 at *1-3 (Tenn. Ct. App. July 10, 2017). Even after repeated warnings, Ms. Lacy
still refuses to abide by the Tennessee Rules of Appellate Procedure. Due to our inability
to reach the substantive issues, given the deficiencies in Ms. Lacy’s brief after repeated
warnings, Ms. Lacy’s appeal is dismissed.
Despite our dismissal of this appeal, we reviewed the record thoroughly. We
conclude that there is no evidence to support Ms. Lacy’s various arguments. There is
simply nothing in the record to indicate that the trial court erred in resolving any
procedural issues. Furthermore, we agree with the trial court that the record is “woefully
deficient” of proof to support Ms. Lacy’s claims of assault and battery. Accordingly,
1
See Lacy v. HCA Tristar Hendersonville Hospital, No. M2017-01055-COA-R3-CV, 2018 WL
575346 (Tenn. Ct. App. Jan. 26, 2018) (no perm. app. filed); Lacy v. Meharry General Hospital, No.
M2016-01477-COA-R3-CV, 2017 WL 6501915 (Tenn. Ct. App. December 19, 2017) (no perm. app.
filed); Lacy v. Hallmark Volkswagen Inc. of Rivergate, No. M2016-02366-00A-R3-CV, 2017 WL
2929502 (Tenn. Ct. App. July 10, 2017) (no perm. app. filed); Lacy v. HCA Health Service of TN, Inc.,
No. M2016-01027-COA-R3-CV, 2017 WL 1944351 (Tenn. Ct. App. May 10, 2017), perm. app. denied
(Aug. 17, 2017); Lacy v. Saint Thomas Hospital West, et al., No. M2016-01272-COA-R3-CV, 2017 WL
1827021 (Tenn. Ct. App. May 4, 2017), perm. app. denied (May 4, 2017); Lacy v. Vanderbilt University
Medical Center, No. M2016-02014-COA-R3-CV, 2017 WL 6273316 (Tenn. Ct. App. May 4, 2017) (no
perm. app. filed); Lacy v. Mitchell, et al., 541 S.W.3D 55 (Tenn. Ct. App. Nov. 30, 2016); Lacy v. HCA
Tristar Hendersonville Hospital, et al., No. M2015-02217-COA-R3-CV, 2016 WL 4497953 (Tenn. Ct.
App. Aug. 25, 2016), appeal after remand. Additionally, Ms. Lacy has three cases still pending in this
Court. See Lacy v. Vanderbilt Univ. Med. Ctr., No. M2018-00832-COA-R3-CV; Lacy v. Saint Thomas
Hospital West, No. M2018-01758-COA-R3-CV; Lacy v. Big Lots Stores, Inc., M2019-00419-COA-R3-
CV.
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even if the appeal was not dismissed for procedural shortcomings in her brief, the
judgment of the trial court would be affirmed.
V. Conclusion
For the forgoing reasons, the appeal is dismissed. Costs of this appeal are assessed
against the Appellant, Deborah Lacy for all of which execution may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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