Assigned on Briefs May 1, 2017
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
R. App. P. 3 Appeal as of Right; Appeal Dismissed and Case
"Rome" Withers, Memphis, Tennessee, appellant, pro
Sisk Wellford, Memphis, Tennessee, for the appellee, Rosalind
Neal McBrayer, J., delivered the opinion of the court, in
which John W. McClarty and Brandon O. Gibson, JJ., joined.
MEMORANDUM OPINION 
NEAL McBRAYER, JUDGE
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.
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.
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.
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.
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
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.
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