Cooksey v. Shelley

• Court: Court of Appeals of Tennessee
• Decided: September 30, 1996
• Docket: 01A01-9708-CV-00378
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

HELEN COOKSEY, ) From the Wilson County Circuit Court ) at Lebanon, Tennessee Plaintiff/Appellee, ) ) The Hon. Bobby Capers, Judge vs. ) ) Trial Court No. 9846 ) Appeal No. 01A01-9708-CV-00378 ) JERRY AND LOTTIE SHELLEY, ) AFFIRMED ) Defendants/Appellants. ) ) JASON S. MANGRUM ) CHRISTOPHER R. FOX ) Lebanon, Tennessee ) Attorney for Appellants

FILED ) ) HELEN K. COOKSEY, pro se ) Lebanon, Tennessee May 6, 1998 )

Cecil W. Crowson Appellate Court Clerk MEMORANDUM OPINION1

HIGHERS, J.

Defendants/Appellants, Jerry and Lottie Shelley (“defendants”), appeal the judgment

of the trial court affirming the decision of the W ilson County General Sessions Court in

favor of plaintiff/appellee, Helen Cooksey (“plaintiff”). For reasons state hereinafter, we

affirm the judgment of the trial court.

Facts and Procedural History

Judgment was awarded to plaintiff in the Wilson County General Sessions Court on

September 30, 1996. Defendants appealed the case to the Circuit Court for Wilson

County. The trial was set for December 9, 1996. Defendants were not present at this

proceeding and as a consequence of their nonappearance, the trial court dismissed the

action. Defendants were informed of the date of the proceeding by a letter sent to them

1 Rule 10 (Court of Appe als). Memorandum O pinion. -- (b) The Cou rt, with the c onc urre nce 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 When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. via U.S. mail. This letter was received by Jerry Shelley. Defendants contend that Jerry

Shelley suffers from post-traumatic stress disorder. Defendants further contend that this

illness was the basis for many episodes of fantasy and confusion in Mr. Shelley. As a

result of these episodic encounters with fantasy and confusion, defendants assert that Mr.

Shelley failed to inform Mrs. Shelley of the trial date which resulted in their absence.

After the dismissal, defendants filed an Application for Writ of Certiorari and

Supersedeas with the trial court together with a medical affidavit of Mr. Shelley’s mental

condition and the affidavit of Mrs. Shelley asserting that she had not been informed of the

original December 9, 1996, trial date.

This matter was heard before the Honorable Bobby Capers on March 5, 1997, upon

defendants’ Application for Writ of Certiorari and Supersedeas. At the hearing after

granting defendants’ Application for Writ of Certiorari and Supersedeas, the trial judge

stated that if the defendants wanted a trial, he would conduct one that day. The witnesses

were sworn and the trial was conducted at the bench. Defendants contend that they were

denied the opportunity to be heard, to cross examine, and to present any evidence.

Plaintiff contends that defendants were not denied these rights but rather stated that

defendants chose not to proffer any evidence. Plaintiff further asserts that defendants

wanted the trial court to set a new trial date. Due to repeated continuances in General

Sessions and one nonappearance in the trial court, Judge Capers denied the request for

continuance and heard only the proof submitted, which was that of the plaintiff. Part and

parcel of this proof was that of plaintiff stating the amount of the balance owed on the

General Sessions judgment. Consequently, the trial court denied the Application and

affirmed the General Sessions Court decision granting judgment to plaintiff. This appeal

ensued.

The sole issue raised on appeal is as follows:

Did the trial court err in not granting defendants a trial de novo on appeal after granting the Application for Writ of Certiorari and Supersedeas?

2 Discussion

Tenn. Code Ann. § 16-15-729 (1997 supp.) provides:

No civil case, originating in a general sessions court and carried to a higher court, shall be dismissed by such court for any informality whatever, but shall be tried on its merits; and the court shall allow all amendments in the form of action, the parties thereto, or the statement of the cause of action, necessary to reach the merits, upon such terms as may be deemed just and proper. The trial shall be de novo, including damages.

Defendants strenuously argue that they were denied their right to a trial de novo as

specifically provided by Tenn. Code Ann. § 16-15-729 (1997 supp.). We disagree.

At oral argument, conversation between the court and counsel for defendants

concerning the March 5, 1997, court date helps to shed some light on this matter.

Question: Could you have presented proof on that day?

Answer: My clients were there your honor. We could’ve presented proof.

Question: The trial judge didn’t forbid you from presenting any evidence you wanted to present?

Answer: Not in that respect . . . He forbade me to present it the way I wanted to present it, . . . in a more reasonable manner, less hurried. I felt we were not going to be given a fair hearing.

In the opinion of this court, this does not evince a denial of the defendants right to a de

novo trial on the merits. On the contrary, defendants were provided with an opportunity to

present proof several times but chose not to do so. We note that this matter was

continued several times in General Sessions and was set for trial in December of 1996.

As such, counsel for defendants had ample time to prepare his proof. At oral argument,

he stated that he was able to put on his proof on March 5, 1997, but felt hurried in doing

so. The trial court did not deny defendants their right to a de novo trial. Rather, defendants

were presented with this right and rejected the opportunity to invoke it. They did so to their

own peril.

Accordingly, we affirm the judgment of the trial court. Costs of this appeal are taxed

to defendants, for which execution may issue if necessary.

3 HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.