1 The doc ument is signed by the executors of Avery Johnson’s wi ll and dated March 4, 1952. Although t h e record is not clear, Avery Johnson appears to have been one of the previous owners of the land in question. Avery Johnson’s

holographi

c will is als o include

d in the r ecord, it is si gned and date

d December 12, 1904. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON APRIL 2000 Sessi

on JOHN W. JOHNSON v. BERNICE WADE, ET AL 

### . Direct Appeal from the Circuit Court for Gibson County No. 7528, 7529, 7537, 7538, 7550; The Honorable Dick Jerman, Jr., Judge

No. W1999-01651-COA-R3-CV - Filed September 6, 2000

This appeal arises from an action for ejectment filed by Plaintiff John W. Johnson (“Plaintiff”) against D efendant Bern

ice Wade (“Def

endant”). Plainti

ff filed suit in the

Gibson County

Circuit Courtalleging that he was the sole owner of the tract of land where both Plaintiff’s and Defendant’s residences are located. Prior to Defendant’s f

iling on an answe

r, Plaintiff filed

a motion for defa

ult j udgment. Thereafter, Defendant filed an answer, a motion to dismiss, and a motion to co mpe l Plaintiff to appear for deposition. FollowingPlaintiff’s failure to appear for de position, failure t

o preparean order as directed by the court, and an attempt to file a premature appeal, the trial court dismissed Plaintiff’s case for failure to properly prosecute. Plaintiff appeals. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS , J., delivered the opinion of the court, in which C RAWFORD , P.J

. , W.S., and L ILLARD , J., joined. John W. Johnson, Trenton, pro se L. L. Harrell, Jr., Trenton, for Appellee

OPINION
On or about February 1998, Plaintiff discovered a document which he believe d gave him fu ll ownership to the Trenton, Tennessee, tract of land where Plaintiff’s house is located. 1 On July 1, 1998, Plaintiff, acting pro se, filed an action against the Defendant to eject Defendant from the land2 Tenn. Code Ann. § 29-15-102 p rovides: “Any person having a valid subsist ing legal interest in rea l property, and a right to th e immedia te possessio n thereof, ma y recover the same by an a ction of ejec tment.”

3 These action followed the s ame pattern as the action examined above. Plai ntiff fil ed suit and thereaf

ter file d motion for default judgment. All actions initiated by Plaintiff were subsequently dismisse d by the trial court

. Suit fil ed against Haz

zie Johnson

dismisse

d for fail ure to prose

cute. Sui

t fil ed against

descendants

of Deloach and Lel

a Wade dismissed for failure to prosecu te. The D efendan ts’ individu al cases we re conso lidated for a ppeal.

4 The record and the parti es’ briefs suggests t

hat this order was made in open co urt. This court was not provided with a transcript f

rom the hearing. -2- pursuant to Tenn. Code Ann. §29-15-102. 2 Shortlythereafter, Plaintiff filed interrogatories and a request for prod

uction. Plaintiff la

ter filed similar a

ctions against sev

eral other individ

uals. 3

On August 10, 1998, Plaintiff filed a motion for summary judgment and/or default judgment pursuant to Rule 55.01 of the Tennessee Rules of Civil Procedure. On August 13, 1998, Defendant filed an answer, a motion for summary judgment, and a motion requesting Plaintiff’s clarification of his claims. On Augus

t 24, 1998, Plaintiff

filed a moti on re questing a ruling on his motion for default judgment. Plaintiff

filed another moti

on requesting the s

amerelie f on March 5, 1999. Plaintiff took no further action until he was served with a notic e to take his deposi

tion on April

27, 1999. Following the deposition request, Plaintiff filed an opposition to the deposition on the ground that he was awaiting a ruling on his default judgment motion.
Defendant

filed a motion to compel Plaintiff’s appearance for deposition. A hearing on the motion to compel was held on May 17, 19 99. The court below ordered Plaintiff to appear for deposition on a date agreed upon by the partie

s. Although Plaintiff indicated that he would comply, immediately

after the hear

ing he filed a motion

to appeal. Plaintiff failed to appear for deposition on May 27, 1999. In a

ddition, Plaintiff f

ailed to prepare

an order reque

sted by the court. 4

On July 28, 1999, the trial court entered an orderingdismiss ing Plaintiff’s case for failure to properly prosecute based on Plaintiff’s failure to prepare the requested order, P la intiff’s appeal from a non-final decision, and Plai ntiff’s failur e to appear for d eposition as order

ed by the court. Plaintiff appeals.
ANALYSIS
As a preliminary mat

ter, we find it n

ecess ary to address Plaintiff’s position as a pro se litigant. Plaint iff repres ented himself both during the proce

edings below and o

n appeal. While li tigants who proceed pro se are entitled to fair and equal treatment, "they must follow the sam e proceduraland substantive law as the represented party." Irvin v. City of Clar ksville , 767 S.W.2d 649, 652 (Tenn. Ct. App.1988). Indeed, a pro se litigant requires even greater at tention than one represented

by counsel. The trial judge must accommodate the pro se liti gant's lack of legal knowledge without giving t he pro s e litigant an unfair advantage beca

use the litigant re

presents himself. Id . From our reading of the record, the trial court made every available concession required5 We find it appropriate to note that t he use of “may” rathe r tha n “shall” indica tes that entry of a d efault judgmen t is discretionary ra ther than man datory. -3- to accommodate Plai

ntiff’s pro se status. With this in mind, we now turn to the issues raised on appeal. A. Default Judgment
As his first issue on appea l, Plaintiff asser ts that the trial co

urt erred in fail

ing to grant his motion for default judgm ent. According to

Plaintiff, Defen

dant’s failure to

file an answer w

ithin thirtydays of service o

f the complaint en

titled Plainti

ff to ju dgment by default p ursuant to Rule 55.01 of the Tennessee Rules of Civil Procedure. For the following reasons, we find that the trial court did not err i

n failing to award

Plaintiff a defau

lt judgment.
Rule 55 of the Tenn

essee Rule of Civil P

rocedure provi

des in relevant pa

rt: When a pa rty against whom a j udgment for affi rmative relief is

sought h a s failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affid

avit or otherwise

, judgment by defa

ult may 5 be entered as fo

llows: The party entitl

ed t o a judgment by def ault shall apply to th

e court. All parties against whom a defa ult judgment is sought shall be served with a written notice of the application for judgment at least thirty days before the hearing on the application , regardless of whether the party has made an appearance in the action. (emphasis added.) Accordingly, in order

for Plaintiff to prevail on a motion for default judgment, Defendant must be given ample notice of both Plaintiff’s motion and the proposed date of the default judgment hearing. Plaintiff’s motion failed to mee t these requireme

nts. While the cer

tificate of service indicates that
a copy of the motion w

as mailed to Defe

ndant, the motion fa

ils to inclu de a date for

the default judgment hearing.
We note that Defe ndant did fil e an answer withi n days of Plaintiff

’s motion for defa

ult judgment. In addition, the re cord indicates th

at Defendant wa

s active in the discovery pro

cess, both in answering Plaintiff’s requests and see king to depose Plain

tiff. With the for

egoing in mind, as we

ll
as the Court’s general disfavor for def ault judgments, we f

ind that the trial c

ourt did not err in

failing to grant Plaintiff’s motion for default judgment. See Nelson v. Simpson , 826 S.W.2d 483, at 485- 486 (Tenn. Ct. App. 1991) (cases should be determined on the merits whenever possible.)

B. Dismissal for Failure to Prosecute6 Rule 41.0 2 of Tenn. R . Civ. P. pro vides:

(1) For failure of the plain tiff to prosec ute or to co mply with thes e rules or any order of

court, a defendant may move for dism issal of an ac tion or of a ny claim against the defend ant. -4- Plaintiff also assert s the trial court erre d in dismissing his cas

e for failure to p

roperly prosecute. Plaintiff claims that the dismissal was an abuse of discretion. We do not agree. For the following reasons, we find that the trial court did not err in dismissing Plaintiff’s case.
Whether on the motion of a party or acting sua sponte , the trial court has the discretion to impose sanctions such as dismissal in order to penalize those who fail to comply with the Rules and to deter others from flouting or disregarding discovery orders. “As a general rule, an action may be dismissed or a

non-suit granted because of the plaintiff's failure to appear and prosecute his case, or for his failure to pros

ecute his case diligently.” White v. College Motors, Inc. , 370 S.W.2d 476, at 477 citing 17 Am. Jr. p. 151; Rule 4 1.02 Tenn. R. Civ. P. 6 Dismissal is a harsh sanction and in order to ensure that the r

ights of the parties ar

e not impaired, this

power must be exe

rcised most sparin

gly andwith great ca

re. Harris v. Baptist Memorial Hospital , 574 S.W.2d 730, at 731 (Tenn. 1978). However, when the trial court exercises its discretion in imposing the sanction of dismi ssal, its decision will not be disturbed on appeal without an affirmative showing that the trial judge abused his discretion. Holt v. Webster , 638 S.W.2d 391, at 394 (Tenn. Ct. App. 1982) citing Hemmer v. Tennessee Electric Power Co. , 139 S.W.2d 698 (1940).
With the forgoing in mind, we now turn to the facts of the case at hand. Plaintiff initiated several suits in the court below seeking relief. Thereafter, Plaintiff failed to actively pursue his case; Plaintiff failed to prepare an order as directed by t he court; failed to appear for deposition; and attemptedto appeal from a n on-final order.

We find nothing in

the record showing any reason for Plaintiff’s failure to respond timely and completely to the court’s order. In a ddi tion, Plaintiff has made no showing tha

t the trial court a

bused its discretio

n in granting the dis

missal. Accordingly, we hold that the trial court did not err on this issue.
CONCLUSION
Basedon the foregoing, the decision of the trial court is affirmed. Costs of this appeal are taxed to Plaintiff, John W. Johnson, for which execution may issue if necessary.

___________________________________ ALAN E. HIGHERS, JUDGE