FILED

June 29, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS

AT KNOXVILLE

IN RE: ESTATE OF CLIMER E. ) BLOUNT CIRCUIT

CONNATSER; ) C. A. NO. 03A01-9801-CV-00005

 )

GARY MICHAEL CONNATSER, ) 

 ) 

 Plaintiff-Appellant )

 )

 )

 )

 )

 )

vs. ) HON. W. DALE YOUNG

 ) JUDGE

 )

 )

 )

 )

 )

BEATRICE CONNATSER, EXECUTRIX, ) AFFIRMED AND REMANDED

 )

 Defendant-Appellee )

GARY MICHAEL CONNATSER, Pro Se, Louisville, Appellant.

ANGELIA D. MOORIE, Nicholson, Garner & Duggan, Maryville, for

Appellee.
2

O P I N I O N

McMurray, J.

T his is a will contest. The contestant, Gary Michael

Connatser, charges in his pleadings that the testator was mentally

incompetent at the time of the making of the will and further that

the testator was subjected to undue influence by the legatees named

i n the will. The executrix, Beatrice Connatser, moved for summary

judgment. Upon consideration, the court sustained the motion and

entered judgment upholding the will. This appeal resulted. We

affirm the judgment of the trial court.

The executrix, Beatrice Connatser, is the widow of Climer E.

Connatser. Gary M. Connatser is a son of Climer E. Connatser,

deceased, by a prior marriage. Under the Will of Climer E.

Connatser, which is contested here, Beatrice Connatser is the sole

devisee of any and all pro perty , real, personal or mixed "to the

exclusion of all others" in the event she survived the testator,

which she did. Samuel D. Connatser is the son of Beatrice Connatser

and Climer E. Connatser, and a one-half brother to Gary M.

Connatser. Samuel is the contingent devisee in the event his

mother, Beatrice, should have predeceased the testator.
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W e should note that the plaintiff-contestant is pro se. While

w e are constrained to view pleadings and procedural matters

liberally when a non-law yer party appears pro se, we are not at

liberty to overlook either procedural law, substantive law or the

Rules of Civil Procedure approved by the Supreme Court and the

G e ner a l Assembly. The record is filled with superfluous and

irrelevant documents, having no basis in either law, fac t o r

procedure insofar as the record reflects. Nevertheles s, we have

reviewed the record in its entir ety i n an attempt to ensure that

the appellant suffered no injustice at the hands of the judicial

system. We are unable, however, to ensure that the appellant will

not suffer an "injustice" as a result of incompetent representation

as a pro se litigant.

In State v. Goodwin , 909 S.W.2d 35, (Tenn. Crim. App. 1995),

the defendant sought to represent himself. The trial court

cautioned the defendant as follows:

"You have no greater right than any other litigants and

must expect and receive the same treatment and consideration as if you were represented by an attorney. You are

held to the same familiarity with the required procedures," and that's what bothered me some, "and the same

notice of statutory local rules as would be attributed to

a duly-qualified member of the bar. The trial judge will

not act for your attorney at all. A party who represents

himself would be held to the same standard of knowledge

and practice as any qualified member of the bar. Reasonable consideration for a layman acting as his own

attorney, "and I have already advised you this, "does not

require the Court to interrupt the course of proceedings
4

t o translate legal terms, explain legal ru les , or

otherwise attempt to address the ongoing consequences of

the party's decision to function in a capacity for which

he is not trained." 

Id. at 41.

W e agree with the general proposition set out by the trial

judge in Goodwin , however, as we have previously noted, we will

cast the pro se litigant's actions in the most liberal light

allowed by law. In this case, we have done so.

The appellant's issues presented for review, generally stated,

assert that he was denied due process and abus e of discretion by

the trial court. We find no merit in either.

The appellee filed a motion for summary judgment pursuant to

Rule 56, Tennessee Rules of Civil Procedure, on the grounds that

there was no genuine issue of a material fact and that she is

entitled to judgment as a matter of law. As earlier noted, the

grounds upon which the appellant sought to contest the will were

lack of mental capacity and undue influence. The appellee filed in

support of her motion for summary judgment, the affidavits of the

attorney who drafted the will and the two attesting witnesses. The

affidavits established that the will was duly executed and in the

opinion of the attorney and the attesting witnesses, the testator

was, at the time of the execution of the will, of sound mind and
5

disposing memory and did not appear to be under any undue influence.

The duty of a non-moving party, when faced with a motion for

summary judgment is well-settled. 

Once it is shown by the moving party that there is

n o genuine issue of m aterial fact, the nonmoving party

must then demonstrate, by affidavits or discovery

materials, that there is a genuine, material fact dispute

to warrant a trial. Fowler v. Happy Goodman Family , 575

S.W.2d 496, 498 (Tenn. 1978); Merritt v. Wilson Cty. Bd.

o f Zoning Appeals , 656 S.W.2d 846, 859 (Tenn. App. 1983).

I n this regard, R ule 56.05 provides that the nonmoving

party cannot simply rely upon his pleadings but must set

forth spe cifi c facts showing that there is a genuine

issue of material fact for trial. "If he does not so

respond, summary judgment . . . shall be entered against

him." Rule 56.05.

Byrd v. Hall , 847 S.W.2d 208 (Tenn. 1993).

During the course of time while this litigation was pending in

the trial cour t, the appellant filed various affidavits. None,

however, went to the question of mental capacity at the time of the

execution of the will. Most contained inadmissible or irrelevant

evidence and did not meet the requirements of Fowler v. Happy

Goodman Family , supra, regarding admissibility of evidence.

F u rther, the appellant failed to demonstrate in any fashion that

the testator was mentally incompetent to make a will.
6

While the burden is upon the proponent to establish

that the will was duly executed by a competent testator,

upon proof of due execution, the capacity of testator and

voluntariness of his act are presumed. Curry v. Bridges ,

4 5 Tenn. App. 395, 325 S.W.2d 87 (1959); Needham v.

Doyle , 39 Tenn. App. 597, 286 S.W.2d 601 (1956).

I n this case the appellant has not, by the most liberal

constru ctio n and interpretation, of the documents found in the

record presented anything to rebut the presumption of capacity and

voluntariness.

The appellant further complains that he was denied due

process. Specifically, he complains that he was deprived of a

trial by jury. In speaking to this issue, the court in Union

Planters Nat'l. Bank v. Inman , 588 S.W.2d 757 (Tenn. App. 1979),

put the question of a lack of jury trial in summary judgment cases

at rest:

I n the first assignment of error contestants insist

that the entry of a summary judgment in a will contest

proceeding amounts to an improper denial of the right to

a jury trial as provided for under Article I, Sec. 6 of

the Constitution of Tennessee and Secs. 32-401, 405 and

408 of T.C.A. We find no r eporte d decision directly in

point, but in numerous cases will c onte sts have been

concluded on demurrer sust ained by the Court or by

ver dict directed by the Court whereby contestants wer e

denied the right to submit the issues to a jury. See

Hickey v. Beeler , 180 T enn. 31, 171 S.W.2d 277 (1943);

Cude v. Culberson , 30 Tenn. App. 628, 209 S.W.2d 506

(1947); Jones v. Sands , 41 Tenn. App. 1, 292 S.W.2d 492

(1953); Curry v. Bridges , 45 Tenn. App. 395, 325 S.W.2d

87 (1959); Bradford v. Bradford , 51 Tenn. App. 101, 364

S.W.2d 509 (1962); Anderson v. Anderson , 220 Tenn. 496,
7

419 S.W.2d 166 (1967). The scope of the Rules of Civil

Procedure is clearly defined in Rule 1, as follows:

Subject to such exceptions as are stated in them ,

these rules shall go vern t he procedure in the

circuit and chancery courts of Tennessee and i n

other courts while exercising the jurisdiction of

the circuit or chancery courts, in all civil actions, whether at law or in equity, including civil

actions appealed or otherwise transferred to those

courts . These rules shall not be applicable to

courts of general sessions except in cases wher e

such court s by special or private act exercise

jurisdiction similar to that of circuit or chancery

courts. These r ules shall be construed to secure

the just, speedy and inexpensive determination of

every action.(emphasis added)

The subject action, civil in nature , w as properly

transferred to the Circuit Court from the Probate Court

o f Shelby County under the app licable statute. Accordingly, we find that where there is no genuine issue as to

any material fact summary judgment under Rule 56 is

appropriate in a will contest proceeding and does not

amount to an improper denial of contestants' right to a

jury trial.

Id. at 760.

Summary judgment upholding the validity of the last will and

testament of Climer E. Connatser was properly granted in this case.

The appellant asserts, in a manner somewhat disrespectful to

the court, that the court "erred in precluding him from conducting

discovery." First, we note that the appellant filed eighty-five

interrogatories. Of the eight-five interrogatories, eleven were

answered. The remaining interrog ator ies concerned, in the main,

events that could in no way be calculated to lead to the discovery
8

of admissible evidence or relevant information, or were so overly

broad, burdensome and ambiguous as to be incapable of a meaningful

answer. We note that the interrogatories were filed with the

appellant's original pleadings. At the same time, a motion to

compel answers to the interrogatories was filed. Such a motion was

untimely, frivolous and not in harmony with the Tennessee Rules of

Civil Procedure. Further, the appellant claims to have filed a

notice to take depositions which he claims the appellee ignored and

the court refused to enforce. We find in the record a "motion to

start depositions and discovery" which was also filed on the same

date as the original pleading. Such a motion is unknown to the

Tennesse e Rule s of Civil Procedure. The motion, did however,

contain a list of items that could be co nstr ued as requests to

produce. The request for production of documents was, like the

interrogatories, in the main, totally irrelevant and could, in no

way, reasonably be expected to lead to additional information

material to the issues raised in the pleadings in the trial court.

Proper responses were made to all appropriate requests for

production.

Finally, as to the "notice to take depos ition, " there is

contained in the file a document styled "Notice to Take Deposition." The "notice," however, is a "request" addressed to the

Circuit Court Clerk to issue subpoenas to take depositions. There
9

was no notice as contemplated by Rule 30.02, Tennessee Rules of

Civil Procedure. Rule 30.02 provides in pertinent part as follows:

(1) A party desiring to take the deposition of any

person upon oral examination shall give notice in writing

to every other party to the action . The notice shall be

served on the other parties at least five days beforehand

when the deposition is to be taken in the county in which

suit is pending. When the deposition is to be taken out

o f the county, at le ast se ven days' notice shall be

given. The notice shall state the time and place for

taking the deposition and the na me and address of each

person to be examined, if known, and if the name is not

known, a general description sufficient to identify the

person or the particular class or group to which the

person belongs. If a subpoena duces tecum is to be served

o n the person to be examined, the designation of the

materials to be produced as set forth in the subpoena

shall be attached to or included in the notice. (Emphasis

added).

W e find no merit in the appellant's complaints relating to the

trial court's alleged failure to enforce the appellant's attempts

t o obtain discovery. In so doing, we are constrained to sta t e

affirmatively that the allegations of wrongdoing, prejudice, bias

and malfeasance leveled against the trial judge in the appellant's

brie f are entirely unsupported by the record, are scurrilous and

demonstrate a total lac k o f reasonable decorum. Such conduct by

attorneys or pro se litigants should not be condoned.

The appellant also claims in the argument in his brief that

the court abused its discretion in imposing sanctions against him

under Rule 11, Tennessee Rules of Civil Procedure. After our
1 0

review of the record, we agree with the trial court that sanctions

are appropriate. While, as hereinbefore noted, we look liberally

upon the actions of a laymen acting pro se, there is simply nothing

i n the record, under any theory of law, by which relief can be

granted to the appellant. The misguided efforts of a pro se

litigant are no less subject to sanctions than those of an attorney

well tra ined in the law. We find no abuse of discretion on the

part of the trial court.

W e affirm the judgment of the trial court in all respects.

Costs are assessed to the appellant and this case is rema nded to

the trial court.

 ________________________________

 Don T. McMurray, J.

CONCUR:

 (Not participating) 

Houston M. Goddard, Presiding Judge

___________________________________

William H. Inman, Senior Judge
 IN THE COURT OF APPEALS

AT KNOXVILLE

IN RE: ESTATE OF CLIMER E. ) BLOUNT CIRCUIT

CONNATSER; ) C. A. NO. 03A01-9801-CV-00005

 )

GARY MICHAEL CONNATSER, ) 

 ) 

 Plaintiff-Appellant )

 )

 )

 )

 )

vs. ) HON. W. DALE YOUNG

 ) JUDGE

 )

 )

 )

 )

BEATRICE CONNATSER, EXECUTRIX, ) AFFIRMED AND REMANDED

 )

 Defendant-Appellee )

JUDGMENT

This appeal came on to be heard upon the record fro m th e

Circu i t Court of Blount County, briefs and argument of counsel.

Upon consideration thereof, this Court is of the opinion that there

was no reversible error in the trial court.

W e affirm the judgment of the trial court in all respects.

Costs are ass essed to the appellant and this case is remanded to

the trial court.

 PER CURIAM