1 Rule 10 (Co urt of A ppeals). Memorandum Opinion . – (b) The Court, with the concurrence of al l judges participating in the c as e, may affirm, reverse or modify t he 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 s hall be design

ated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case

. 

### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON January 26, 2001 S ession LULA FAYE MOODY, ET VIR 

### v. GENERAL MOTORS CORPORATION, ET AL. Direct Appeal from the Circuit Court for Decatur County No. 2349 and 2457 C. Creed McGinley, Judge

No. W2000-01658-COA-R3-CV - Filed February 26, 2001

Plaintiffs sued General Motors Corporation and Townsend Chevrolet-Buick-Pontiac, Inc. as a result of injuries sustained

by Ms. Moody

as a result of a single car accident. In a separate complaint they sued Townsend alleg

ing that it had sold them a purp

ortedly new

vehicle when in fact the odometer had been rolled

back. The cases were consolidated for trial and the accident case re sulted in ajury verdict in favor of the defendants. The case involving the odometer was dismissed by

the trial court. Appellants

failed to presen

t this court with eith

er a transcript o

r a st atement o

f the evid ence. We affirm. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed; and Remanded
D AVID R. F ARMER , J., delivered the op inion of the court,

in which W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined. Lula Faye Moody

, Pro se

. William Earl Moody, Pro se

. LouisF. Allen and William F. Burns, Memphis, Tennessee, for the appellee , Townsend Chevro

letBuick-Pontiac, Inc. MEMORANDUM OP INION 1-2-

Lula Faye Moody

and William Moody filed a pro se complaint wherein they sued General Motors Corporation andTownsend Chevrolet-Buick-Pontiac, Inc. bearin g docket number

2349 in the trial court. The complaint alleges that Ms. Moody was injured as a result of a single car accident on October 31, 1996 and sought recovery for her injuries, medical expenses, pain a nd suffering and Mr. Moody’s loss of consortium. The complaint further alleges that the vehicle which Ms. Moody was driving at the time of the accident, a 1992 Pontiac Transpor

t, was manufactured by defendant General Motors and purchased from Townsend. It further alleged that the vehicle had been taken to the defendant Townsend for extensiv e repair and alleges negligence and brea ch of warranty on the part of the de

fendants. Subsequent

to the filing of that compl ai nt, the Moodys employed counsel and a second complaint was filed against Townsend Chevrolet-Buick-Pontiac, Inc. alleging that the 1992 Pontiac Transport purchased from T

ownsend had been

sold to the Moo dys as a new vehicle when it was not and that the odometer had been rolled back. It is alleg ed that the Defendant illegally altered the odometer reading and

willfully an

d fraudulently

failed to disclose this to the Plaintiffs. It is alleged that the Defendants violated theTennessee Consum er Protection Ac

t as set forth in

T.C.A. § 47-18- 104 and sought to r

ecover damag

es and attorney’s fees.
The two cases were consolidated for trial before a jury

. However, the trial court entered an order of dismissal in cause n

umber 2457 where

in it is stated that “as a matter of law the Plaintiffs failedto carry their burden of proof for all causes of action set forth in their Complaint in Cause No. 2457”and the cause was dismissed with prejudice.
Cause number 2349 was su

bmitted to the jury

and a ju dgmen t on jury verdict was entered wherein the jury found that the Defendant Townsend was 20% at fault for the accident and that the Plaintiffs were 8

0% at fault. Acco

rdingly, ju

dgment was ente

red in favor of th

e Defendant.
Plaintiffs filed a motion f or new trial in cause number 2457 on the basis that their expert witness, Mr. Charles Bradley, was not allowed to t est ify. Plaintiffs also filed a document entitled “Tampering with a Juror” which the trial court treated as a motion for new trial. This document states as follows:

It is my opinion that we have a conflict of interest in case DK #2457 in that the judge had a one

-on-one conver

sation with

a juror while the c

omplete jury

was in the jury box. The judge had a personal c onversation with th

is juror while the other jurors were in the jury box. The owners of Townsend Motor Company have brothers and unc les tha t ar e at tor neys and practice before this court. Therefore, the fact that this juror and the judge are friends could have caused other jury members to rule as this particular juror ruled. I believe we have a conflict of intere st between the judge, the juror, and the Tow

nsends. The Towns

ends a re well know n in this area in banking, in car

dealerships, and

in law firms.2 The record before this co urt does co ntain a transcrip t of the argume nts before the trial court on the motions

for new trial. -3-

This one-on-one c onversation had nothing to do with my case, DK # 2457. There could also be a cloud over DK #2349.
The motions for new trial were denied and the Plaintiffs appealed to this court. In cases tried by a jury, no issue presented for review shall be predicated upon e rror in the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other ac ti on committed or occu rring during th

e trial unless spec

ifically sta

ted in a motion for n

ew trial. Rule 3(e ) T enn. R. App. P. In reviewing the motions for new trial, we perceive the issues to be whether the trial court erred in excluding the testimony of the expert witness called by Plaintiffs and whether the trial court committedreversible error by having a one-on-one conversation with a

juror while the complete jury was in the jury box.
With respect to the first issue, this court is a court of review and it is our duty to review the record from the trial court to determinewhether or not error has been committed. We are hampered in this appeal by the absence of either a transcript of the proceedings in the trial court or a statement of the evidence pr

epared in accordance with Rule 24(c) Tenn. R. App. P. 2 This burden falls s quarely upon the appellant. See Harrison v. Arnold , 558 S.W.2d 831, 833 (Tenn. 1977). In the absence of a record, we are unable to determ ine whether the tria

l court erred in n

ot permitting the w

itness to testify and we find this issue to be without merit. We likewise find the second issue to

be without merit and do not feel it merits further discussion.
We recognize that Mr. and Mrs. Moody proceeded pro se in this court. Parties who choose to represent themselves are entitled to fair and equal treatment. However, they a re not excused from complying

with applicable substantive and procedural law

and must follow the s

ame procedural and sub stantive law as the represented party. See Irvin v. City of Clarksville , 767 S.W.2d 649, 6 5 2 (Tenn. Ct. App. 1988).
Costs of this appeal ar

e taxed to the app ell ant s, Lu la Fa ye Moody and William Moody, for whi ch ex ecut ion may i ssu e if nece ssa ry.

___________________________________ DAVID R. FARMER, JUDGE