JAY JERNIGAN et al.
CHARLES K. HUNTER et al.
Assigned on Briefs June 9, 2014
Appeal from the Circuit Court for Davidson County No. 07C107 Hamilton Gayden, Jr., Judge
Charles K. Hunter, Nashville, Tennessee, Pro Se.
Tim L. Bowden, Goodlettsville, Tennessee, for the appellees, Jay Jernigan and Reah Hiett.
Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.
FRANK G. CLEMENT, JR., JUDGE
John R. Jernigan ("the decedent") died following an assault inside Christie's Cabaret on January 28, 2006, by two men who stabbed him seven times from his armpit to his torso on the left side of his body and beat him profusely. Charles K. Hunter was indicted for "unlawfully, intentionally, and with premeditation" killing the decedent, and his son, Bobby K. Hunter, was indicted on assault charges arising out of the same incident. Charles Hunter pled guilty to voluntary manslaughter of the decedent for "the intentional or knowing killing of another in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner." Tenn. Code Ann. § 39-13-211(a). His son Bobby Hunter pled guilty to the lesser charge of aggravated assault.
Jay Jernigan and Rhea Hiett ("Plaintiffs"), as father and mother, and next of kin of the decedent, filed this wrongful death action against Charles Hunter and Bobby Hunter alleging they were liable for the decedent's death. Both defendants represented themselves at trial.
Following a bench trial on December 12, 2012, and June 26, 2013, the trial court rendered a final order of judgment that reads in pertinent part:
The Court heard the testimony and oral argument presented on behalf of the parties, read the depositions and reviewed the file in its entirety. There was conflicting deposition testimony about the events of January 28, 2006 and the roles of the participants in the incident(s) at issue in this lawsuit. The Court has a real concern about the training of the staff at Christie's Cabaret and the measures taken after discovering that [the decedent] had been seriously wounded. Evidence also strongly suggests that there was an unreasonable delay in the response time of emergency personnel following the reporting of the incident. However, notwithstanding those concerns, the Court hereby finds that the Plaintiffs have established by a preponderance of the evidence that the defendant, Charles K. Hunter, directly and intentionally contributed to the wrongful death of [the decedent] by stabbing him multiple times.
Because of conflicting accounts of the events by witnesses and the erroneous identification by others of participants and of the deceased Plaintiff, there is insufficient evidence in the record to show that Bobby K. Hunter caused or contributed to the death of [the decedent].
The trial court entered judgment in favor of Plaintiffs and against Charles Hunter in the amount of $250, 000; the claims against his son Bobby Hunter were dismissed. Charles Hunter filed a timely appeal and he is the only appellant.
We note at the outset that Charles Hunter ("Defendant") represented himself in the trial court and is representing himself in this court. "Pro se litigants are entitled to fair and equal treatment. Pro se litigants are not, however, entitled to shift the burden of litigating their case to the courts." Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000) (citations omitted). "Prisoners and other non-lawyers who represent themselves are not excused from complying with the same applicable substantive and procedural law that represented parties must comply with." Bowling v. Tennessee Bd. of Paroles, No. M2001-00138-COA-R3-CV, 2002 WL 772695, at *3 n.6 (Tenn. Ct. App. Apr. 30, 2002) (citing Hodges v. Tenn. Att'y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000)).
This appeal is before the court on the technical record only (Tenn. R. App. P. 24(a) record) as we are favored with neither a transcript of the evidence pursuant to Tenn. R. App. P. 24(b) nor a Statement of the Evidence pursuant to Tenn. R. App. P. 24(c). It is the duty of the appellant to prepare a record which conveys a fair, accurate, and complete account of what has transpired in the trial court with respect to the issues that form the basis of the appeal. Tenn. R. App. P. 24(a); see also State v. Boling, 840 S.W.2d 944, 951 (Tenn. Ct. Crim. App. 1992). Mere statements of a party or his counsel, "which are not appropriate proffers or not effectively taken as true by the parties, cannot establish what occurred in the trial court unless supported by evidence in the record." State v. Thompson, 832 S.W.2d 577, 579 (Tenn. Ct. Crim. App.1991).
"In the absence of a transcript of the evidence, there is a conclusive presumption that there was sufficient evidence before the trial court to support its judgment, and this Court must therefore affirm the judgment." Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn. Ct. App. 1992) (citing McKinney v. Educator and Executive Insurers, Inc., 569 S.W.2d 829, 832 (Tenn.App. 1977)). To the extent that resolution of the issues on appeal depend on factual determinations, the lack of a transcript or Statement of the Evidence is essentially fatal to the party having the burden on appeal. See Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992) (holding that without an appellate record containing the facts, the court must assume that the record, had it been preserved, would have contained sufficient evidence to support the trial court's factual findings). Nevertheless, even without an evidentiary record, we may examine "those issues where appellate review is not hindered by the absence of a transcript or statement of the evidence." Am. Express Centurion Bank v. Lowrey, No. E2011-01247-COA-R3-CV, 2013 WL 937831, at *4 ...