1 The cases were as follows. Perry H. Young v. Hamilton Cou nty and Public Defenders Office , Hamilton County Chancery CourtDocket No. 96-0279, wherein Young claimed that he was detained without proper
cause. Perry

H. Young v. Hamilton Cou nty , Hamilton County Chancery Court Docket No. 96-0350 and96-0387, wherein Young claimed that if an attorney had been present at his criminal trial, he 

### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

PERRY H. YOUNG v. STA TE OF TENNESSEE
Direct Appeal from the Circuit Court for Hamilton County No. 98 C 0354 Samuel H. Payne, Judge

No. E1999-1968-COA-R3-CV - Decided June 21, 2000

In February 1998, plaintiff-a ppellant, pro se, filed a suit in Hamilton County Circuit Court against th e State of Tennes see averring tha t the four complain

ts that he filed in 19

96 in Hamilt

o n CountyChancery Court pertaining to his sentencing in his criminal cases and the revocationof his parole were unlawfully dismissed in 1996 by the Chancellor for lack of subject matter jurisdiction. He appeals from

the circuit court’s order granting the state’s motion to dismiss on the grounds of lack of subject

matter jurisdictio

n, insufficiency

of service of pr

ocess, and failure to sta

te a claim upon which relief

could be granted

. We affirm the tr

ial court’s dismissa

l.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed

G ODDARD , P. J., delivered the opinion of the court, in which F RANKS and S USANO , JJ., joined.
Appellant is pro se
Meredith Devault, Assistant Attorney General, Nashville for the appellee

OPINION

The plaintiff-appellant, Perry H. Young, who is incarcerated, is acting pro se. On February 10, 1998, he filed a

suit in Hamilton County

Circuit Court against the State of Tennessee averring that he filed three comp

laints against Ham

ilton County and one c

omplaint against Ha

milton County andthe Public Defenders Office in the Hamilton County Chancery Court between April 1, 1996, and June 3, 1996, 1 and that the Chancery Court entered orders dismissing all four cases on June 14, 1996would

not have been convicted as a habitual offender and would not have been incarcerated without proper cause. Perry H. Young v. Hamilton County , Hamilton County Chancery Court Docket No. 96-0459, wherein Young claimed that a prior conviction, for which Young had already served his time, was added with out proper procedures being followed. This placed Young in double jeopardy and hindered his early release from prison. All four cases were consolidated at trial level. Mr. Young filed fo r a writ of mandam

us in those cases seeking a

n order dism

issing all mo tions filed by the defendant concerning the jurisdiction of the court. The defendant sought dismissal of the ac

tions based upon T. C

. A. § 16-10-102, which confers exclusive and original subject matter jurisdiction of all crimes and misdemeanors, including any sentencing or

factors used in th

e enhancement o

f a sentence, to t

he Circuit Court.

2 The order read

s: It appearing to the court that on June 14, 1996, the Court entered anOrder dismissing the Complaints filed in these consolidated cases because the Court lacked juris diction to hear the matters complained of by the Plaintiff, and it fur the r appearing that the Plaintiff c ontinues to file

pleadings in these matters without regard to the Court’s deter

mination that it

lacks jurisdiction over

the Plaintiff’s cl

aims, it is ORDERED that the Motions file d by Plainti ff are denied and thes e cases shall be closed. It is f urther ORD ERED that the Clerk and Master shall accept no more pleadings in these consolidated cases from the Plaintiff unless the Plaintiff first pays the court costs incurred to date which are taxed against the Plaintiff.

-2- andSeptember 18, 1996. Mr. Young claims that the orders dismissing the Chancery Cour t cases wereinvalid and false. Heclaims that he never saw the order entered on September 18, 1996. 2 He
avers that the Chancellor’s failure to grant a hearin

g on his complaints de

aling with his

conviction
as a habitual offender, the

charge of felonious operation of motor vehicle, and his numerous mot ions, inter alia , to “interchange” the judge and to tra nsfer the cases

to circuit court, violated the Hamilton CountyChancery Court’s Local Rules of Practice, the law, and Mr. Young’s c onstitutional rights

. Mr. Young seeks dama

ges from the dismiss

al of his complaints

filed in the Hamilto

n County Chancery Court and the “complaint being submitted.”

On April 3, 1998, the State filed a motion to dismiss, along with a brief in support of the motion to dismiss, based upon, inter alia , the cou rt’s lack of subject matter jurisdiction, insufficiency of service of proc

ess, failure to sta

te a claim upon which relief

could be granted, the State could not be sued under 42 U.S.C. § 1983 for mone y damages and that the statute of limitations barred the claim.

Mr. Young filed a motion for summary judgment onFebruary 8, 1999, and a brief in support of his motion for summary judgment on February 11, 1999.-3- I. ACTIONS OF THE T

RIAL COURT

At trial level the plaintiff-appe llant file d, and attempted to file, numerous fallacious documents. A number of th ese were strick

en by the court fo

r appellant’s fa

ilure to comply with Local Rule 11.03.
On July 30, 1999, the trial court granted theState’s motion to dismiss on the grounds that the court lacked subject matter jurisdiction, service of process was insufficient, and the complaint failed to state a claim upon which relief could be granted.

Mr. Young timely filed a noti ce o f appeal on Augus t 24, 1999. He filed

a pauper’s oath which was signed by the trial court judge on August 25, 1999.
Subsequent

to the notice of appeal being filed, Mr. Young filed numerous documents at the trial court level concerning the designation of the record, statement of the evidence, and the issues
on appeal. Ma

ny of the documents wer e duplicative. Ev

en after reman

d to the trial court

in accordance

with Rule 24(e) of the Tennessee Rules of Appellate Procedure, this Court has been inundated with numerous spurious motions concerning the state of the record on appeal.

II. ISSUES

We restate the is sues raised by Mr. Young to be whethe

r the trial court c

orrectly failed

to grant his motion for summary judgment, his motion for default judgment, his motion for a subpoena for his a

ttendance for a

hearing on his def

ault judgment motion,

and dismissed his complaint?

III. LAW AND DISCUSSION

Our review of the

findings of fact ma

de by the trial Cour

t is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance

of the evidence

is otherwise. Ten

nessee Rules of Ap

pellate Procedur

e, Rule 13(d); Campbell v. Florida Steel Corp. , 919 S.W.2d 26 (Tenn. 1996). Where, as in this case, there is no confli

ct in the evidence

or the inferenc

e to be drawn ther

efrom as to any ma

terial fact, the question on app

eal is one of law,

and the scope of r

eview is de novo with no presumption of correctness accompanying the trial court's conclusions of law. Enochs v. Nerren , 949 S.W.2d 686 (Tenn. Ct. App. 1996).
At the outset, we wish to affirm as this Court stated in Irvin v. City of Clar ksville , 767 S.W.2d 649, 651-652 (Tenn. Ct. App. 1988), “conducting litigation involving a pro se litigant can be difficult and challenging. On one hand, a trial judge must accommodate the pro se litigant's legal naivete, and, on the other hand, he must not allow the pro se litigant an unfair advantage because the litigant represents himself.”-4- Pro se litigants who invoke the complex and sometimes technical procedures of the courts assume a very heavy burden. Gray v. Stillman Whi te Co. , 522 A.2d 737, 741 (R.I. 1987). Conducting a trial with a pro se litigant who is unschooled in the intricacies of evidence and trial practice can be difficult. Oko v. Rogers , 125 Ill. App. 3d 720, 81 Ill. Dec. 72, 75, 466 N.E.2d 658, 661 (1984). Nonetheless, trial courts are expected to appreciate and be understanding of the difficulties encountered by a party who is embarking into the maze of the judicial process with no experience or formal training. Parties who choose to represent themselves are entitled to fair and equal treatment. Childs v. Duckworth , 705 F.2d 915, 922 (7th Cir.1983). However, they are not excused from complying with applicable substantive and procedural law, Burgs v. Sissel , 745 F.2d 526, 528 (8 th Cir. 1984); Wolfel v. United States , 711 F.2d 66, 67 (6th Cir. 1983), and they must follow the same procedural and substantive law as the represented party. See, e.g. , Dethlefs v. Beau Maison Dev. Corp ., 511 So.2d 112, 118 ( Miss. 1987); Heinsch v. Lot 27 , 399 N.W.2d 107, 109 (Minn. Ct. App. 1987).
Irvin v. City of Clar

ksville , at 652. See also, Paehler v. Union Planters Nat. Bank , 971 S.W.2d 393, 396 (Tenn. Ct. A

pp. 1997); Edmundson v. Pratt, 945 S.W.2d 754, 755, (Tenn. Ct. App. 1996); Kaylor v. Bradley , 912 S.W.2d 728, 735 (Tenn. Ct. App. 1995).
Accordingly, the United States Court of Appeals for the District of Columbia has held: “At least where a litigant is seeking a monetary award, we do not believe pro se status necessarily justifies special consideration ... While such a pro se litigant must of course be given fair and equal treatment, he cannot generally be permitted to shift the burden of litigating his case to the courts, nor to avoid the risks of failure that attend his decision to forgo assistance.” Dozier v. Ford Motor Co. , 702 F.2d 1189, 1194 (D. C. Cir. 1983). Pro se litigants are enti

tled to the same libe

rality of construc

tion with regard to their pleadings that Tenn. R. Civ. P. 1, 8.05 & 8.06 afford any other litigant. Estelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976).
Irvin v. City of Clar

ksville , 767 S.W.2d 649, 651-652 (Tenn. Ct. App. 1988).
Mr. Young in his naivete of the law - both substantive and procedural - declares that the trial judge erred in failing to grant his motion for summary judgment which attacked the motion to dismiss filed by the

defendant. He f

urther claims tha

t the defendant’ s failing to respon d to his motion for summary j udgment entitles him to a default judgme

nt. We find no meri

t in either his logic or his argume

nt. The defendant’s Motion to Dismiss was filed pursuant to Tennessee R. Civ. P. § 12.02. In pertinent par

t, the rule reads :-5- Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive plead

ing thereto if one

is required, exc

ept that the following defenses may at the option of the pleader be made by motion in writing: (1) lack of jurisdiction over the subject matter , (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process , (6) failure to state a claim upon which relief can be granted , (7) failure to join an indispensable party, and (8) specific negative averments made pursuant to Rule 9.01. . . .
Furthermore, as this court stated in Kaylor v. Bradley , 912 S.W.2d 728, 731 (Tenn. Ct. App. 1995): The sole purpose of a Tenn. R. Civ. P. 12.02(6) motion is to test the sufficiency of the complaint. Cook v. Spinnaker's of Rivergate, Inc

. , 878 S.W.2d 934, 938 (Tenn. 199

4); Dobbs v. Guenther , 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992). . . . Reviewing courts must always look to the substance of the challenged complaint rather than its form. Usrey v. Lewis , 553 S.W.2d 612, 614 (Tenn. Ct. App. 1977). Thus, when the adequacy of a complaint is tested by a Tenn. R. Civ. P. 12.02(6) motion, we must review the complaint's allegations liberally in favor of the plaintiff, taking all factual allegations therein as true. Cook v. Spinnaker's of Rivergate, Inc. , 878 S.W.2d at 938; Lewis v. Allen , 698 S.W.2d 58, 59 (Tenn. 1985).
In dealing with the

motion to dismiss, Mr. Y oung filed a motion f

or summary judgmen

t, rather than a ple

ading entitled re

sponse to motion to dis

miss. The trial cou

rt correctly look

ed to the substance of the pleading rather than to just the title. Because the defendant had filed a motion to dismiss, ther

e was no need for

the defendant to f

ile an answer to th

e complaint itself until after the motion to dismiss had been ruled upon. The court was not compelled to enter the default judgment submitted by Mr. Young. Even though Mr. Young is an incarcerated pro se appellant, he cannot be permitted to shift the burden of litigating his case to the courts. See generally , Irvin v. City of Clar ksville , 767 S.W.2d 649, supra. Furthermore, Mr. Young claims that the trial court erred in not granting his “notice for a subpoena” in order that he could come to court to present his motion for default judgment. We disagree with Mr. Young.
While a prisoner has a constitutional right to institute and prosecute a civil action seeking vindication of a legal right, he only possesses a qualified and restricted right. Whisnant v. Byrd , 525 S.W.2d 152 (Tenn. 1975). In Whisnant , the Supreme Court quoted with approval the following languag

e from Tabor v. Hardwick , 224 F.2d 526, 529 (5 th Cir. 1955):
“(W)e think that the principle of the cases (relating to restraint of personal liberty) should not be extended to give them an absolute and unrestricted right to file any-6-

civil action they mi

ght desire. Other

wise, penitentiar

y wardens and the

courts might be swamped with an endless number of unnecessary and even spurious lawsuits filed by in

mates in remote jur

isdictions in the hop

e of obtaining lea

ve to appear at the hearing of any such case, with the consequent disruption of prison routine and concomitant hazard of escape from custody. As a matter of necessity, however regrettable the rule may be, it is well settled that, ‘Lawful incarceration brings about the ne

cessary withdra

wal or limitation of

many privileges a

nd rights, a retraction justified by the considerations underlying our penal system.’” [Citations in original omitted.]
Whisnant v. Byrd , 525 S.W.2d at 153.

The Whisnant

court went on to quo

te with approval th

e following langua

ge from Seybold v. Milwaukee County Sheriff , 276 F. Supp. 484, 488 (E. D. Wis. 1967):
“Regardless of th

e merit of the cau

ses of action state

d in their complaint

s, it must be remembered t

hat the prisoner-

plaintiffs have,

by their own acts r

esulting in conviction, placed themselves in a position such that effective prosecution by themselves is not possible without interference by the court with their detention, and it is our opinion that absent unusual circumstances that interference is not warranted. In o

ther words, their

unavailability for

hearings and tria

l is due to their convictions, and although the court believes that they should not therefore lose their rights of action by operation of a statute of limitations, we know of no authority compelli

ng us under ordina

ry circumstance

s to deliver them fr

om their self-caused restrictions and proceed with their cases as through they could appear at will.”
Whisnant v. Byrd , 525 S.W.2d at 154.
There were no unusual circumstances present here requiring the presence of Mr. Young at any hearing on his default motion. The trial judge appropriately ruled upon the pleadings before it in dismissing the case and correctly refrained from issuing an order for the appeara nce of Mr. Young in court.
And last, but not lea

st, we proceed to

the merits of whet

her the trial cou

rt properly granted the motion to dismiss. Without specifically addressing all of the issues raised in the motion to dismiss, we w

ill address the und

erlying issue. Wa

s there a claim pr

esented in his complaint upon which relief could be granted? Our unqualified conclusion is “no”, there is none.
Any grievance th

at the Mr. Young ha

d concerning the

dismissal of the fou

r cases filed in 1996 in the Hamilton C

ounty Chancery Cou

rt must be redress

ed by a timely appe

al to this Court. This he did not do.
T.C.A. § 16-4-108 p

rovides as follows :-7-

(a) (1) The juri

sdiction of the cou

rt of appeals is a

ppellate only, and

extends to all civil cases except workers' compensation cases and appeals pursuant to § 37-10-304(g). (2) All cases with

in the jurisdiction t

hus conferred o

n the court of app

eals shall, for purposes of review, be taken directly to the court of appeals in the division within which the case arose, the eastern division to include Hamilton County and the western division to include Shelby County. As to all other cases, the exclusive right of removal and review is in the supreme court. Any case removed by mistake to the wrong court shall by such court be transferred to the court having jurisdiction thereof, direct. (b) The court of appeals also has appellate jurisdiction over civil or criminal contempt arising out of a civil matter.
T. C. A. § 16-4-115 p

rovides that “The

procedure on ap

peal in the court o

f appeals shall be governed by the Tennessee Rules of Appellate Procedure.”
The Tennessee Rules of Appellate Procedure, Rule 3, provides: “In civil actions every final judgment entered by a trial court from which an appeal lies to the Supreme Court or Court of Appeals is appealable as of right.” Tennessee Rules of Appellate Procedure, Rule 4(a), provides: “In an appeal as of right to the Supreme Court, Court of Appeals or Court of Criminal Appeals, the notice of appeal required by Rule 3 shall be filed with and received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed from: . . .”
That rule is mandatory and jurisdictional in civil cases. Thandiwe v. Traughber , 909 S. W. 2d 802 (Tenn. Ct.

App. 1994); Bishop v. Tennessee Dept. of Correction , 896 S. W. 2d 557 (Tenn. Ct. App. 1994). Mr. Young did not appeal his 1996 cases. That was his only avenue for any redress. While this court has jurisdiction concerning his current appeal, we have none concerning his 1996 cases; neither did the Hamilton County circuit court have subject matter jurisdiction. The prior dismissal by the chancery court of the 1996 cases was fully, finally and irrevocably set in stone by Mr. Young’s failure to appeal that decision. There has to be an eventual end to lit

igation. In closing, we quote with app roval the followin

g from Moulton v. Ford Motor Co. , 533 S. W. 2d 295, 296 (Tenn. 1976):

The words of Justice Caruthers in Warwick v. Underwood , 40 Tenn. 238, decided over a century ago, have continuing relevance:
“. . . It is not material on this point whether the finding of the jury was right or not in the former su

it. That cannot be

questioned any mor

e between the sa

me parties or their p

rivies. Right or wro

ng the question was

finally closed, un

less a new trial had bee

n obtained in the sa

me suit. This rule is n

ot alone for the be

nefit of the parties litigant, to put an end to strife and contention between them, and produce certainty as to individual rights, but it is also intended to give dignity and respect to judicial proceedings, and relieve society from the expense and annoyance of indeterminable litigation about the same matter. 40 Tenn. at 241.”-8- We affirm the decision of the trial court in dismissing Mr. Young’s complaint and remand the case to the trial court for collection of costs below. Costs of appeal are adjudged against Perry H. Young.