University Place S.E., LP v. R. Bosan a/k/a Rick Bosan

                                                                                                      12/13/2023
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                   November 28, 2023 Session

      UNIVERSITY PLACE S.E., LP v. R. BOSAN a/k/a RICK BOSAN

                      Appeal from the Circuit Court for Shelby County
                      No. CT-0448-23     Yolanda Kight Brown, Judge
                          ___________________________________

                               No. W2023-00790-COA-R3-CV
                           ___________________________________


This case arises from a forcible entry and detainer proceeding. Because Appellant’s
principal brief fails to comply with Rule 27 of the Tennessee Rules of Appellate Procedure
and Rule 6 of the Rules of the Court of Appeals of Tennessee, the appeal is dismissed.

                 Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and KENNY ARMSTRONG, J., joined.

Rick Bosan, Memphis, Tennessee, Pro se.

Gregory C. Krog, Memphis, Tennessee, for the appellee, University Place S.E., LP.


                                  MEMORANDUM OPINION1

       This case concerns the eviction of Appellant Rick Bosan from an apartment owned
by Appellee University Place S.E., LP (“University Place”). On June 22, 2022, University
Place obtained a forcible entry and detainer warrant for possession (“FED warrant”) of its
property from the general sessions court. The FED warrant was personally served on Mr.
Bosan on June 24, 2022, and he subsequently retained counsel to represent him in the
matter. On August 11, 2022, following a hearing, the general sessions court rendered a

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

              This 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      opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and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.
judgment in favor of University Place.

        Although Mr. Bosan had previously retained counsel as noted above, he later chose
to represent himself by proceeding pro se. On January 19, 2023, he filed a motion for relief
in the general sessions court under Rule 60.02 of the Tennessee Rules of Civil Procedure.2
In his motion, Mr. Bosan admitted to having been properly served with the FED warrant,
but claimed the judgment against him was the product of fraud perpetrated by University
Place. Specifically, Mr. Bosan alleged that, whereas University Place had initially filed
the FED warrant due to his alleged failure to submit documents that were required to live
at the apartment complex at issue, it then later represented to the general sessions court that
he had failed to pay rent. Mr. Bosan contended that, if he had known that University Place
planned to allege failure to pay rent, he could have produced proof of payment at trial. The
general sessions court dismissed Mr. Bosan’s motion for relief on January 23, 2023.

       On January 24, 2023, Mr. Bosan filed a notice of appeal to circuit court. His appeal
was later dismissed by the circuit court in an order entered on May 12, 2023, following
which he filed a timely appeal in this Court.

       In connection with this appeal, we observe that Mr. Bosan has filed a principal brief
that, among other deficiencies, fails to include any citations to the appellate record. Of
particular note, although his principal brief contains various allegations of fraud, it fails to
include a single citation to where these instances are supported by the record on appeal.
This failure, which frustrates our review, amounts to noncompliance with the rules of
appellate procedure and the rules of this Court. Rule 27 of the Tennessee Rules of Appellate
Procedure mandates that appellate briefs contain, among other things, the following:

        (a)     Brief of the Appellant. The brief of the appellant shall contain under
                appropriate headings and in the order here indicated:

                ....

                (6)     A statement of facts, setting forth the facts relevant to the issues
                        presented for review with appropriate references to the
                        record;

                (7)     An argument, which may be preceded by a summary of
                        argument, setting forth:

                        (A)     the contentions of the appellant with respect to the

        2
          We note that Mr. Bosan’s counsel did not formally file a motion to withdraw from representation
until February 26, 2023, and the motion to withdraw was not granted until March 13, 2023. Nevertheless,
Mr. Bosan proceeded pro se in his January 19, 2023, motion for relief.
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                             issues presented, and the reasons therefor, including the
                             reasons why the contentions require appellate relief,
                             with citations to the authorities and appropriate
                             references to the record (which may be quoted
                             verbatim) relied on[.]

Tenn. R. App. P. 27 (emphasis added). Moreover, Rule 6 of the Rules of the Court of
Appeals of Tennessee states:

       No complaint of or reliance upon action by the trial court will be considered
       on appeal unless the argument contains a specific reference to the page or
       pages of the record where such action is recorded. No assertion of fact will
       be considered on appeal unless the argument contains a reference to the
       page or pages of the record where evidence of such fact is recorded.

Tenn. Ct. App. R. 6(b) (emphasis added). As a pro se litigant, Mr. Bosan is entitled to “fair
and equal treatment from the courts,” and “courts should take into account that many pro
se litigants have no legal training and little familiarity with the judicial system.” Watson v.
City of Jackson, 

 (Tenn. Ct. App. 2014) (quoting Jackson v. Lanphere,
No. M2010-01401-COA-R3-CV, 

, at *3 (Tenn. Ct. App. Aug. 12,
2011)). However, we must also consider the balance between “fairness to a pro se litigant
and unfairness to the pro se litigant’s adversary.” 

 Here, Mr. Bosan’s complete lack of
appropriate citations renders all of his allegations unsupported, and neither this Court nor
University Place is required to “verify unsupported allegations in a party’s brief.” Duchow
v. Whalen, 

 (Tenn. Ct. App. 1993).

       In fact, a party’s “failure to comply with the Rules of Appellate Procedure and the
rules of this Court waives the issues for review.” Bean v. Bean, 

 (Tenn.
Ct. App. 2000); see also Thomas v. Bank of Am., N.A., No. M2015-01849-COA-R3-CV,

, at *4 (Tenn. Ct. App. July 5, 2017) (“Based upon Thomas’s failure to
comply with Tenn. R. App. P. 27 and R. Tenn. Ct. App. 6, we conclude that Thomas has
waived any issues raised, and the appeal should be dismissed.”). Here, because Mr. Bosan’s
principal brief does not support any allegations by appropriate citations to the record, we
conclude that he has waived his issues on appeal and that the appeal should be dismissed.

       University Place has requested that we award it its attorney’s fees incurred on appeal
pursuant to Tennessee Code Annotated section 27-1-122. In the exercise of our discretion,
we respectfully decline to award University Place its attorney’s fees in connection with this
appeal.




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                                  CONCLUSION

      Because we conclude that Mr. Bosan has waived all issues on appeal due to his
noncompliance with Rule 27 of the Tennessee Rules of Appellate Procedure and Rule 6 of
the Rules of the Court of Appeals of Tennessee, the appeal is hereby dismissed.



                                                  s/ Arnold B. Goldin
                                                ARNOLD B. GOLDIN, JUDGE




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