Joseph Cannistra v. William Charles (Billy) Brown ( 2022 )

09/26/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 1, 2022
JOSEPH CANNISTRA v. WILLIAM CHARLES (BILLY) BROWN
Appeal from the Circuit Court for Giles County
No. 21-CV-11948 Christopher V. Sockwell, Judge
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No. M2021-00833-COA-R3-CV
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This appeal involves a challenge to a circuit court’s award to a landlord for a deficiency in lease
payments. The landlord and tenant offered conflicting testimony regarding the terms of the parties’
agreement. The circuit court judge found the landlord’s description of the agreement more
convincing than the tenant’s and awarded the landlord a judgment in the amount of $9,800 as well
as costs. On appeal, the tenant insists the circuit court judge erred in his assessment of the
conflicting testimony. We find the trial court’s determination to be supported by the record and
therefore affirm the judgment of the trial court.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case
Remanded
JEFFREY USMAN, J., delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J.,
and ARNOLD B. GOLDIN, J., joined.
Joseph Cannistra, Pulaski, Tennessee, Pro se.
Robert D. Massey, Pulaski, Tennessee, for the appellee, William Charles (Billy) Brown.
OPINION
I.
What began with a vision for launching an Italian restaurant in Pulaski, Tennessee, ended
in a contentious landlord and tenant relationship, unpaid lease payments, and rather bizarrely a
wall damaged as a result of a car being driven into it. Joseph Cannistra, the tenant, grew up with
an Italian restaurant as the family business. He saw an opportunity to open a mom-and-pop style
Italian restaurant where none existed.
Mr. Cannistra, who envisioned building a restaurant on his own land, approached fellow
Pulaskian William Brown, a residential and commercial contractor, about the project. This was
the start of what began as a positive relationship. Mr. Brown referred Mr. Cannistra to a drafting
company to create blueprints for the restaurant.
In addition to his work as a contractor, Mr. Brown was also the owner of multiple properties
that he leased. Mr. Cannistra was interested in renting one of those properties, a building on North
Second Street in Pulaski. While the blueprint drafting process was still underway for a new
restaurant, Messrs. Brown and Cannistra began a landlord-tenant relationship in October or
November of 2016.
The parties diverge over what the initial use of the leased property was to be. Mr. Cannistra
indicates the property was initially used for car repairs and that only later was the decision made
to convert the space into a restaurant. Mr. Brown asserts the property was to be used as a temporary
location for the launch of the restaurant until a new building was constructed. Whatever the initial
use of the property, Mr. Brown offered to lease the property for what Mr. Cannistra believed to be
a good rental rate of only four hundred dollars per month. Part of the trade-off for the relatively
low cost was that Mr. Brown made the building available as-is and with no responsibility for the
alterations or maintenance necessary to make the building useable as a restaurant.
During the blueprint drafting process, it became clear to Mr. Cannistra that the costs of a
new building were beyond what he was willing to pay. Mr. Canninstra, however, moved forward
with the restaurant, deciding to operate on a more permanent basis at the rental location. While
the parties disagree regarding the reason for the increase in the monthly payment, they do agree
the amount due each month increased from four hundred dollars to six hundred dollars. Mr.
Cannistra asserts the increase was specifically to cover additional insurance on the property, which
he contends was to be acquired by Mr. Brown given the anticipated increased flow of customers
resulting from usage of the building as an Italian restaurant rather than for car repairs. Mr. Brown
asserts the increase resulted from the rental property transitioning from serving as a temporary
location for the launch of Mr. Cannistra’s restaurant while Mr. Brown worked as a builder on a
new structure to becoming a more permanent location for the restaurant.
The landlord-tenant relationship between Mr. Brown and Mr. Cannistra began in 2016 with
an oral agreement. A written lease agreement followed as the rental of the North Second Street
property transitioned from temporary to more permanent in nature. The parties agree that Mr.
Cannistra tracked Mr. Brown down at a Home Depot store in March of 2017, asking him to sign a
written lease agreement. Mr. Brown reviewed and signed the lease agreement that was presented
to him by Mr. Cannistra while still at Home Depot. Mr. Brown did not make a copy of the signed
lease; Mr. Cannistra retained the signed document.
With the rented building as the location, Mr. Cannistra operated Mezza Luna Pizza as a
family-run business. His wife and stepson were both involved in the business. In operating the
restaurant, Mr. Cannistra made modifications to the building, including putting in new black and
white flooring. Overwhelmed by the heat in the building, he also added an expensive new air
conditioning unit.
The addition of the air conditioning unit was part of what was an emerging split between
landlord and tenant. Mr. Cannistra believed himself to be responsible for improvements, such as
the flooring and wallpaper, but believed Mr. Brown was responsible for a recurring flooding issue
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and the lack of air conditioning.1 The relationship between landlord and tenant further deteriorated
due to missed lease payments. Mr. Cannistra had missed a single lease payment in April of 2017
but began regularly missing lease payments starting in July of 2019. He would miss seventeen
months of payments between July 2019 and April 2021. The rental payments that he made during
this period were in the amount of six hundred dollars. He did make extra payments of four hundred
dollars in May and June of 2020 on top of the monthly six-hundred-dollar payment.
Mr. Cannistra does not contend that he made the missing payments; rather, he connects the
stopped payments with Mr. Brown’s alleged non-compliance with the terms of their lease
agreement. Mr. Cannistra indicates that he inquired of Mr. Chad Alsup, who Mr. Cannistra asserts
is the only insurance agent handling commercial insurance in Pulaski, whether Mr. Brown had
obtained insurance in connection with the rental building. Mr. Cannistra indicates that Mr. Alsup
informed him that Mr. Brown had not insured the property, meaning, in Mr. Cannistra’s view, that
his six-hundred-dollar payments were too high and that the amount due was instead four hundred
dollars. Mr. Brown insists his obtaining insurance was never part of the parties’ agreement and
that the six-hundred-dollar payment, an increase from the original four-hundred-dollar amount,
was related to the shift from a temporary to a more permanent occupancy of the building. In
addition to the division over insurance, Mr. Cannistra was also dissatisfied with Mr. Brown’s
handling of the air conditioning and flooding issues.
During this period of non-payment of rent, Mr. Brown went to see Mr. Cannistra at the
restaurant to attempt to collect. While at the restaurant, Mr. Brown observed that one of the
building’s walls had been significantly damaged. Large blocks of the exterior wall had been
knocked loose, a door had been bent, and an exterior wall was partially caved in. As for the cause
of this damage, a car had been driven into the wall. Mr. Cannistra blamed his wife, Kim Cannistra.
The couple had been experiencing financial problems and had what was described as a “fiery
marriage.” In addition to informing Mr. Brown that Ms. Cannistra was responsible for the damage,
Mr. Cannistra similarly blamed his wife when communicating with local law enforcement at the
time of the incident. Ms. Cannistra denied responsibility. She insisted to both a law enforcement
officer and her husband that she had been out of town, visiting Asheville, North Carolina, when
the damage was done to the building. The investigation ceased.
Mr. Brown filed a detainer action in the Giles County General Sessions Court in October
of 2020, seeking possession of the building, unpaid rent, costs, and compensation for the damages
to the building. The parties’ attempt at mediation failed, and the General Sessions Court heard the
detainer action in April of 2021. The General Sessions Court ruled in favor of Mr. Brown,
awarding possession of the building, unpaid rent, and costs. The General Sessions Court, however,
declined to award any compensation in connection with the damage done to the building.
Mr. Cannistra timely appealed to the Giles County Circuit Court. A trial was held in June
of 2021. During the trial, one of the most important points of division between the parties was
over a written lease agreement. Mr. Cannistra insisted the document which he had brought to court
1
In cross-examination in Giles County Circuit Court, Mr. Cannistra conceded that the document
that he purported to be the valid lease included a checked box which ascribed responsibility for air
conditioning costs to the tenant.
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for the trial, and which he had similarly brought before the General Sessions Court, was the parties’
authentic, original lease agreement signed at the Home Depot in March of 2017. Mr. Brown was
adamant that the document Mr. Cannistra brought to court was not the same document he had
signed. Mr. Brown asserted that the document he signed at Home Depot had been a short basic
lease agreement, while the document Mr. Cannistra questioned him about during the trial was
elaborate, with multiple extra pages and numerous provisions that were not part of the original
lease according to Mr. Brown. The purported signed lease agreement was much discussed during
the trial proceeding testimony, but Mr. Cannistra, who was proceeding pro se, never actually
sought to admit the lease agreement into evidence as an exhibit before the Giles County Circuit
Court.2
In its July 2021 final order, the trial court expressly found Mr. Brown’s testimony to be
credible. The trial court determined the parties’ initial agreement had been for four hundred dollars
a month during the period while the restaurant was being constructed but increased to six hundred
dollars a month following the determination that no new building would be constructed and that
Mr. Cannistra would instead operate the restaurant out of the rental location on a more permanent
basis. Having considered the parties’ sharply conflicting testimony, the trial court found Mr.
Brown’s description of the parties’ agreement to be more convincing than Mr. Cannistra’s
description. As a result, Mr. Cannistra’s assertion that Mr. Brown’s claim was overinflated did
not persuade the Giles County Circuit Court. The trial court’s conclusion did work in Mr.
Cannistra’s favor in one regard. The trial court, which found no evidence to support that Mr.
Cannistra had personally caused the damage to the wall, leaned on the nature of the parties’
agreement in declining to award compensation for damages to the wall. The trial court issued a
judgment of $9,800 for past due rent and awarded costs.
Mr. Cannistra filed a notice of appeal in this court in July of 2021. In response to filings
by Mr. Cannistra seeking more time, this court granted various extensions, including those related
to filing the trial transcript and his appellate brief. This court denied Mr. Cannistra’s requests for
further extensions as well as requests for additional time to amend and supplement his brief, which
was not filed until July 20, 2022. Mr. Brown did not challenge the circuit court’s determination
in declining to award compensation in connection with the damages to the structure.
II.
Mr. Cannistra is representing himself in this appeal as he did in the Giles County General
Sessions and Circuit Courts. Pro se litigants “are entitled to fair and equal treatment by the courts.”
Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545, 551 (Tenn. Ct. App. 2015). Courts should
be mindful that pro se litigants often lack any legal training and many are unfamiliar with the
justice system. State v. Sprunger, 458 S.W.3d 482, 491 (Tenn. 2015). Accordingly, courts should
afford some degree of leeway in considering the briefing from a pro se litigant, Young v. Barrow,
130 S.W.3d 59, 63 (Tenn. Ct. App. 2003), and should consider the substance of the pro se litigant’s
filing. Poursaied v. Tennessee Bd. of Nursing, 643 S.W.3d 157, 165 (Tenn. Ct. App. 2021). Pro
se litigants, however, may not “shift the burden of litigating their case to the courts.” Whitaker v.
2
The document is contained in the technical record, but it was not admitted into evidence as an
exhibit before the circuit court.
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Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). Additionally, “[i]t is not the role of
the courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her.”
Sneed v. Bd. of Prof’l Responsibility of Sup. Ct, 301 S.W.3d 603, 615 (Tenn. 2010). In considering
appeals from pro se litigants, the court cannot write the litigants’ briefs for them, create arguments,
or “dig through the record in an attempt to discover arguments or issues that [they] may have made
had they been represented by counsel.” Murray v. Miracle, 457 S.W.3d 399, 402 (Tenn. Ct. App.
2014). It is imperative that courts remain “mindful of the boundary between fairness to a pro se
litigant and unfairness to the pro se litigant’s adversary.” Hessmer v. Hessmer, 138 S.W.3d 901,
903 (Tenn. Ct. App. 2003).
With this framework in mind, this court discerns two interrelated arguments that emerge
from Mr. Cannistra’s appellate brief.3 One, he contends the trial court should have placed greater
weight on the purported written lease agreement that was discussed during the trial proceeding.
Two, Mr. Cannistra contends, pointing to a variety of alleged inconsistencies in Mr. Brown’s
testimony, that he is a more credible witness than Mr. Brown.
These arguments are ultimately unavailing for the same fundamental reason. The trial
court’s conclusions and weighing of the evidence presented in this case hinge upon credibility
determinations that are adequately supported by the record. “One of the most time-honored
principles of appellate review is that trial courts are best situated to determine the credibility of the
witnesses and to resolve factual disputes hinging on credibility determinations.” Mitchell v.
Archibald, 971 S.W.2d 25, 29 (Tenn. Ct. App. 1998). As stated by the Tennessee Supreme Court,
“[w]hen it comes to live, in-court witnesses, appellate courts should afford trial courts considerable
deference when reviewing issues that hinge on the witnesses’ credibility because trial courts are
‘uniquely positioned to observe the demeanor and conduct of witnesses.’” Kelly v. Kelly, 445
S.W.3d 685, 692 (Tenn. 2014) (citations omitted). In conducting this deferential review, “a trial
court’s determination of credibility will not be overturned on appeal unless there is clear and
convincing evidence to the contrary.” Allstate Ins. Co. v. Tarrant, 363 S.W.3d 508, 515 (Tenn.
3
Counsel for Mr. Brown appropriately and ably demonstrates that Mr. Cannistra’s brief is not in
compliance in multiple respects with Tennessee Rule of Appellate Procedure 27. Mr. Cannistra’s pro se
status does not excuse failure to comply with Rule 27. Gibson v. Bikas, 556 S.W.3d 796, 803 (Tenn. Ct.
App. 2018). This Court has dismissed appeals for non-compliance with Rule 27. See, e.g., Anderson v.
White, No. M2021-00887-COA-R3-CV, 2022 WL 2444952, at *1 (Tenn. Ct. App. July 5, 2022); Jefferson
v. Williams-Mapp, No. W2021-01058-COA-R3-CV, 2022 WL 1836926, at *1 (Tenn. Ct. App. June 3,
2022); Thigpen v. Estate of Smith, No. M2020-01015-COA-R3-CV, 2022 WL 702144, at *1 (Tenn. Ct.
App. Mar. 9, 2022). There is, however, a public policy preference for addressing appeals on the merits.
See, e.g., Lacy v. Hallmark Volkswagen Inc. of Rivergate, No. M2016-02366-COA-R3-CV, 2017 WL
2929502, at *3 (Tenn. Ct. App. July 10, 2017); Patterson v. State, No. M2016-01498-COA-R3-CV, 2017
WL 1103042, at *1 (Tenn. Ct. App. Mar. 24, 2017). This court has discretion to consider a case that could
be subject to dismissal for violation of Rule 27 on the merits. See, e.g., Finley v. Wettermark Keith, LLC,
No. E2020-01081-COA-R3-CV, 2021 WL 3465865, at *3 n.1 (Tenn. Ct. App. Aug. 6, 2021); Weakley v.
Franklin Woods Cmty. Hosp., No. E2020-00591-COA-R3-CV, 2020 WL 7861248, at *3 (Tenn. Ct. App.
Dec. 22, 2020). In this case, there is no prejudice to the opposing party nor to the administration of justice
given the relatively straight-forward nature of the legal analysis of Mr. Cannistra’s contentions in this
appeal. Given the aforementioned, this Court exercises its discretion to consider the merits of Mr.
Cannistra’s arguments on appeal.
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2012).
The trial court’s assessment of the evidence both in terms of the weight given to the
purported written lease agreement and the conflicting testimony of Messrs. Cannistra and Brown
turns upon the same fulcrum – the assessment of the credibility of the two litigants. The weight
assigned to the purported lease agreement turns upon this fulcrum because if the written document
is not the parties’ actual lease, then its evidentiary worth is less than the value of the paper it is
printed upon.
Messrs. Cannistra and Brown offered in their in-person testimony sharply divergent
accounts of the parties’ agreement, including whether the document Mr. Cannistra brought to trial
was, in fact, the same lease agreement the parties had signed in March of 2017. The trial court
found Mr. Brown to be credible, thereby accrediting the testimony that the written document
addressed in the trial testimony was not, in fact, the agreement the parties had signed in 2017. The
trial court also observed that the written document in Mr. Cannistra’s possession, though much
discussed and repeatedly referred to during the course of the trial, was never actually entered into
evidence as an exhibit in the case.
Having reviewed the record in this case, we simply cannot find that the evidence runs
contrary in a clear and convincing manner to the conclusion reached by the trial court. Mr.
Brown’s testimony offered a coherent explanation of the parties’ agreement and Mr. Cannistra’s
violation thereof. In Mr. Brown’s rendition of events, the lease amount increased to six hundred
dollars a month to account for the more permanent usage of the property rather than to cover the
costs of Mr. Brown acquiring additional insurance on the property. Mr. Cannistra then
encountered financial difficulties and stopped regularly making payments. This rendition of events
is also consistent with an exhibit admitted into evidence by Mr. Brown, but which was originally
prepared by Mr. Cannistra, providing an accounting of the rent payments that were made. This
document reflects that when Mr. Cannistra did make payments he continued to do so in the amount
of six hundred dollars. Mr. Brown’s rendition is also consistent with the portion of Ms. Cannistra’s
testimony in which she indicated the Cannistras had been experiencing financial difficulties. Mr.
Cannistra offered a contrary explanation of the parties’ agreement. His rendition of events, most
notably that the two-hundred-dollar increase was solely to cover insurance on the property that
was never obtained by Mr. Brown, does not as naturally square with the course of the payment
history in the accounting he prepared. The trial court observed both litigants testify in person and
made a credibility determination between the two. In light of the evidence presented in the case,
this court would be grossly and improperly overstepping its role by overturning the well-
considered determination of the trial court.
III.
For the reasons discussed above, we affirm the judgment of the Giles County Circuit Court.
Costs of the appeal are taxed to Joseph Cannistra, the appellant, for which execution may issue if
necessary. The case is remanded for such further proceedings as may be necessary and consistent
with this opinion.
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JEFFREY USMAN, JUDGE
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