FILED

May 21, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS 

AT KNOXVILLE

STEWART WAYNE PAIT ) SEVIER COUNTY

 ) 03A01-9808-CH-00274

Plaintiff-Appellant )

)

)

v . ) HON. TELFORD E. FORGETY, JR.,

) CHANCELLOR

)

CITY OF GATLINBURG and )

HARRY MONTGOMERY )

)

Defendants-Appellees ) AFFIRMED AND REMANDED

STEWART WAYNE PAIT, Pro Se, APPELLANT

RONALD E. SHARP OF SEVIERVILLE FOR APPELLEES

O P I N I O N

 Goddard, P.J. 

Plaintiff Stewart Wayne Pait appeals a judgment of the

Chancery Court for Sevier County which dismissed his suit seeking

certain information he contended was possessed by the Defendants

in connection with his criminal conviction for solicitation to

commit first degree murder and forgery.

In an earlier appeal of this case, we held under the

authority of Cole v. Campbell , an unpublished opinion of this
2

Court filed in Nashville on December 18, 1996, that Mr. Pait

lacked standing to prosecute the case. However, Mr. Pait’s

application for appeal from this Court’s prior decision was

granted by the Supreme Court, and under the authority of the

Supreme Court’s decision in Cole v. Campbell , filed in Nashville

on April 13, 1998, the determination of this Court was reversed

and the case remanded to the Trial Court for proceedings

consistent with the Supreme Court’s opinion. 

Mr. Pait raises two principal issues on appeal. The

first contends the Trial Court was in error in dismissing his

suit and this Court was in error in issuing a writ of execution

for appellate court costs incident to the earlier appeal. 

As to the first issue, after a full evidentiary hearing

in which Mr. Pait participated, the Trial Court found that 

written statements of witnesses sought by Mr. Pait which were

taken by one of the officers involved in the criminal

investigation were not in existence because the statements were

oral. As to the second, seeking tapes of a recording made by an

individual aiding the police investigation, which implicated Mr.

Pait, the Court found that neither the City of Gatlinburg nor its

Chief of Police, Harry Montgomery, had possession of the tape and

that it was most likely in the office of the Tennessee Bureau of

Investigation, the Attorney General or the Clerk of the Criminal

Court.
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The evidence does not preponderate against the Trial

Court’s finding of fact and we concur in his determination that

the Defendants could not be ordered to produce material that they

did not possess.

As to the second issue, contrary to Mr. Pait’s

assertion, it appears the execution was issued by the Supreme

Court rather than this Court and Mr. Pait’s complaint with regard

thereto has been specifically addressed by the Supreme Court in

an order entered on December 15, 1998, wherein Justice Drowota,

speaking for the Court, refused to stay the writ of execution

seeking collection thereof. 

We also observe that prosecuting a case i n forma

pauperis does not relieve an indigent from being liable for court

costs but, instead, from being required to make a bond prior to

prosecuting their claims. 

Mr. Pait also raises as a third issue that the

Defendants violated T.C.A. 61-404 and 405, as well as T.C.A. 10-

7-506 relative to public records. The complaint raised as to

this issue is resolved in our determination of the first two

issues.

For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause remanded for collection of costs

below. Costs of appeal are adjudged against Mr. Pait.
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_______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Herschel P. Franks, J.

________________________________

Charles D. Susano, Jr., J.