IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Brief March 25, 2014

MICHAEL W. SMITH v. KIMBERLY CHRESTMAN

Direct Appeal from the Circuit Court for Shelby County

No. CT-004041-11 Jerry Stokes, Judge

No. W2013-02478-COA-R3-CV - Filed April 16, 2014

The trial court dismissed Appellant’s complaint for lack of prosecution. Finding no abuse

of discretion, we affirm.

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

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the Court, in which DAVID R.

FARMER,J., and HOLLY M. KIRBY, J., joined.

Michael W. Smith, Whiteville, Tennessee, appellant, pro se

No Brief filed by Kimberly D. Chrestman, Olive Branch, MS, appellee, pro se
OPINION

MEMORANDUM OPINION

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I. FACTS & PROCEDURAL HISTORY

On September 2, 2011, Michael Smith, acting pro se, filed a complaint against

Kimberly Chrestman in the Shelby County Circuit Court alleging, among other things, that

Ms. Chrestman had knowingly exposed him to Hepatitis C and that she had stolen various

items from him. Mr. Smith sought the issuance of declaratory judgments and injunctions as

well as compensatory damages in excess of $10,000,000.00, plus punitive damages to be

determined.

On October, 19, 2011, Mr. Smith filed his Requests for Admission. The following

day, he filed a Motion for Default Judgment alleging that Ms. Chrestman had failed to timely

answer the complaint. Then, on November 15, 2011, Mr. Smith filed a Motion for Judgment

on Pleadings alleging that Ms. Chrestman had failed to respond to his requests for admission

or to file any responsive pleading in the case.

From the record, it appears that no further action was taken by Mr. Smith to advance

the case. On October 29, 2013, the circuit court entered an Order of Dismissal for Lack of

Prosecution indicating that neither Mr. Smith nor Ms. Chrestman appeared when the cause

came to be heard on the court’s calendar. Mr. Smith timely appealed the dismissal to this

Court.

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Rule 10 of the Rules of the Court of Appeals of Tennessee states: 1

Ths Court, with the concurrence of all judges participating in the case, may affirm, reverse

or modify the 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 shall

be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited

or relied on for any reason in any unrelated case.

Ms. Chrestman has filed no appellate brief. 2

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II. ISSUE PRESENTED

On appeal, Mr. Smith argues that the circuit court erred in dismissing his complaint

for lack of prosecution. Discerning no abuse of discretion, we affirm.

III. DISCUSSION

“Trial courts posses inherent, common-law authority to control their dockets and the

proceedings in their courts.” Hodges v. Attorney General, 43 S.W.3d 918, 921 (Tenn. Ct.

App. 2000). “Their authority is quite broad and includes the express authority to dismiss

cases for failure to prosecute[.]” Id. (citations omitted). “Trial courts may, on their own

motion, dismiss cases for lack of prosecution, but this authority should be exercised sparingly

and with great care.” Id. (citing Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730, 731 (Tenn.

1978)). “[A] trial court’s decision to dismiss a case for failure to prosecute is within its

sound discretion, and will not be reversed unless there is abuse of that discretion.” Osagie

v. Peakload Temp. Servs., 91 S.W.3d 326, 329 (Tenn. Ct. App. 2002) (citing Mfrs. Consol.

Serv., Inc. v. Rodell, 42 S.W.3d 846 (Tenn. Ct. App. 2000); White v. College Motors, Inc.,

212 Tenn. 384, 370 S.W.2d 476 (1963)). “‘[W]e will find an abuse of discretion only if the

court ‘applied incorrect legal standards, reached an illogical conclusion, based its decision

on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that causes an

injustice to the complaining party.’’” Coleman v. Coleman, No. W2012-02183-COA-R3-

CV, 2013 WL 5308013, at *11 (Tenn. Ct. App. Sept. 19, 2013) (quoting Konvalinka v.

Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)).

On appeal, Mr. Smith maintains that the trial court dismissed his complaint because

he failed to set a hearing date for his pending motions. He claims that such dismissal was

in error because he was incarcerated–a fact of which he claims the circuit court was

aware–and, therefore, he was unable to schedule a hearing date.

In his appellate brief, Mr. Smith cites case law indicating that a trial court should not

dispose of a case without first considering and resolving an incarcerated party’s pretrial

motions–even if the prisoner failed to set such motions for argument. See Chastain v.

Chastain, No. M2003-02016-COA-R3-CV, 2004 WL 725277, at * 2 (vacating a divorce

decree where the trial court left unresolved a prisoner’s discovery motions and “plac[ing]

[little] significance” on the prisoner’s failure to set his motions for argument); see also Bell

v. Todd, 206 S.W.3d 86, 91 (Tenn. Ct. App. 2005) (stating that “reviewing courts have

consistently held that trial courts err when they proceed to adjudicate the merits of the claim

without first addressing the prisoner’s pending motion or motions.”). However, the abovecited cases are distinguishable from the instant case. Here, the trial court did not adjudicate

the merits of Mr. Smith’s claims without first resolving his pre-trial motions; it dismissed the

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case in toto for failure to prosecute. The record contains no indication that the trial court’s

dismissal was predicated upon Mr. Smith’s failure to set any motion for hearing. Instead, the

trial court’s Order states that the case was dismissed because Mr. Smith failed to appear

when the cause came to be heard on the court’s calendar.

Even if we assume, arguendo, that the trial court’s dismissal was premised upon Mr.

Smith’s failure to schedule a hearing, Mr. Smith’s argument that his incarceration status

excuses such failure nonetheless fails because there is simply nothing in the bare-bones

record before us to substantiate Mr. Smith’s claim that he was incarcerated during the period

in question. The appellant has a duty to prepare a record that conveys “a fair, accurate and

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complete account of what transpired with respect to those issuesthat are the bases of appeal.”

Tenn. R. App. P. 24(b). “In the absence of an adequate record on appeal, we must presume

that the trial court’s ruling was supported by the evidence.” State v. Bibbs, 806 S.W.2d 786,

790 (Tenn. Crim. App. 1991) (citations omitted). Without any evidence to support Mr.

Smith’s claim–that his incarceration thwarted the prosecution of his complaint–we find the

trial court did not abuse its discretion in dismissing Mr. Smith’s complaint for lack of

prosecution. The decision of the circuit court is affirmed.

IV. CONCLUSION

For the aforementioned reasons, we affirm the decision of the circuit court. Costs of

this appeal are taxed to Appellant, Michael Smith, for which execution may issue if

necessary.

_________________________________

ALAN E. HIGHERS, P.J., W.S.

Additionally, we note that Mr. Smith’s appellate brief contains no citationsto the record as required

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by Rule 27 of the Tennessee Rules of Appellate Procedure.

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