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Withers v. Withers

Court of Appeals of Tennessee, Jackson

January 30, 2018

ANDREW "ROME" WITHERS
v.
ROSALIND D. WITHERS

          Assigned on Briefs May 1, 2017

         This appeal revolves around a pro se litigant's efforts to assume control of the assets of a trust and to replace the trustee. After the dismissal of his second petition related to the trust, the pro se litigant filed this appeal. We dismiss the appeal for failure to file a brief that complies with the appellate rules. We also grant the trustee's request for attorney's fees and expenses incurred on appeal.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed and Case Remanded

          Andrew "Rome" Withers, Memphis, Tennessee, appellant, pro se.

          Shea Sisk Wellford, Memphis, Tennessee, for the appellee, Rosalind B. Withers.

          W. Neal McBrayer, J., delivered the opinion of the court, in which John W. McClarty and Brandon O. Gibson, JJ., joined.

          MEMORANDUM OPINION [1]

          W. NEAL McBRAYER, JUDGE

         On February 11, 2016, Andrew "Rome" Withers filed a petition in the Chancery Court for Shelby County, Tennessee, against his sister, Rosalind D. Withers, in her capacity as trustee of the Ernest C. Withers Revocable Living Trust. Among other things, the petition alleged that Ms. Withers engaged or failed to engage in various acts in violation of her duties as trustee. Through the petition, Mr. Withers sought to assume control of the Trust's assets.

         This was not the first time Mr. Withers sued his sister in her capacity as trustee. In 2008, Mr. Withers and his brother, Clarence E. "Billy" Withers, filed a similar petition, also alleging that Ms. Withers engaged or failed to engage in various acts in violation of her duties as trustee. The petitioners sought to remove Ms. Withers as trustee and to terminate the Trust. This 2008 action was apparently resolved by a settlement agreement entered into by the parties, and on February 23, 2012, the court entered a "Judgment" to enforce this agreement. Among other things, the court identified the Trust's beneficiaries and their respective interests, defined the parties' obligations with respect to the Trust, and dismissed all of the parties' claims with prejudice. Despite the settlement, the record reveals that Mr. Withers attempted to appeal the 2012 order, but his appeal was dismissed for his failure to file a brief.

         When Mr. Withers filed the petition that is the subject of this appeal, Ms. Withers responded by filing a motion to dismiss. In the motion, Ms. Withers argued that the "case should be dismissed for failure to state a claim upon which relief can be granted, as Plaintiff's claims are barred by the doctrine of res judicata." See Tenn. R. Civ. P. 12.02(6). Additionally, Ms. Withers argued that the case should be dismissed because Mr. Withers failed to plead fraud with particularity. See id. 9.02. Ms. Withers supported her motion with various documents, including copies of the petition, Judgment, and docket sheet from the previous action; the declaration of Ms. Withers; and a copy of the order dismissing Mr. Withers' prior appeal.

         Mr. Withers responded with a "Motion to Dissmiss [sic] Defendants [sic] Motion to Dissmiss [sic]." Appended to Mr. Withers' motion was a declaration of Jibril LaGrant Muhammad Shabazz Bey, who claimed to be the successor trustee of the Trust.

         Although not specified in its order, the trial court apparently treated the motion to dismiss as a motion for summary judgment, and the court dismissed the petition with prejudice. See id. 12.02 ("If, on a motion . . . to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."). The court concluded that the petition was barred by res judicata and that, to the extent fraud was alleged, it was not alleged with particularity. The court also concluded that the document submitted with the petition purporting to remove Ms. Withers as trustee was insufficient "on its face."

         On appeal, Mr. Withers filed a six-page brief, four pages of which reproduced in its entirety his 2016 petition. For her part, Ms. Withers argues that Mr. Withers's brief failed to comply with the appellate rules governing briefs and asks us to dismiss his appeal on that basis.

         We agree with Ms. Withers. As an initial matter, we are mindful that Mr. Withers is not a lawyer and that he may have little legal training or familiarity with the judicial system. A party is entitled to fair treatment by our courts when they decide to represent themselves; however, "[p]ro se litigants are not . . . 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). And although pro se litigants are afforded a certain amount of leeway, we cannot entirely excuse them from ...


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