Merritt v. Moore, No. W2025-01131-COA-R3-CV (2026)

Case details
Full caption
KENNETH MERRITT v. BETTY THOMAS MOORE
Country
United States
Jurisdiction
Tennessee (TN)
Court
Tennessee Supreme Court
Decided
2026
Disposition
Remanded
Majority
II (Justice), joined by Andy (Justice), Bennett (Justice), Steven Stafford (Justice)
KENNETH MERRITT v. BETTY THOMAS MOORE, Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 2098349Only the Westlaw citation is currently available.SEE COURT OF APPEALS RULES 11 AND 12Court of Appeals of Tennessee.KENNETH MERRITTv.BETTY THOMAS MOORENo. W2025-01131-COA-R3-CV|Assigned on Briefs May 1, 2026|07/21/2026Appeal from the Circuit Court for Shelby County No.CT-4667-23 Damita J. Dandridge, JudgeThe plaintiff filed this action against a trial court judge whohad presided over a prior lawsuit involving the plaintiff.The Shelby County Circuit Court (“trial court”) dismissedthe plaintiff's claims, determining that they were barred byjudicial immunity. The plaintiff timely appealed. Becausethe plaintiff has failed to comply with Tennessee Rule ofAppellate Procedure 27 and Tennessee Court of Appeals Rule6, we dismiss this appeal.Tenn. R. App. P. 3 Appeal as of Right; Appeal DismissedAttorneys and Law FirmsKenneth Merritt, Memphis, Tennessee, Pro Se.Julia Marie Hale, Memphis, Tennessee, for the appellee, Hon.Betty Thomas Moore.Thomas R. Frierson, II, J., delivered the opinion of the court,in which Andy D. Bennett, J., and J. Steven Stafford, P.J.,W.S., joined.OPINIONIV. ConclusionTHOMAS R. FRIERSON, II, JUDGEI. Factual and Procedural Background*1 On November 6, 2023, the plaintiff, Kenneth Merritt,filed a pleading in the trial court entitled, “LawsuitFiled Against Judge Betty Thomas Moore for ProceduralNoncompliance Leading to Case Dismissal.” Mr. Merritt,acting without benefit of counsel, alleged that Judge Moorehad violated his rights and had failed to comply with localrules in a separate proceeding bearing case number 2035473.Mr. Merritt then detailed the various purported failings ofJudge Moore in that case, including her alleged failure to“update the case file,” her failure to consolidate that casewith another pending matter, and her “mishandling” of thecourt docket, all of which led to “the unfortunate dismissal ofKenneth Merritt's case, CT-1516-22.”Mr. Merritt asserted that although Judge Moore would likelyclaim judicial immunity, such immunity was not absoluteand did not protect a judge regarding administrative acts.Mr. Merritt claimed that his constitutional rights had beenviolated, and based on 42 United States Code § 1983, hesought “$500,000 as compensation for the court's failureto document all legal proceedings.” In addition, he soughtpunitive damages in the amount of $1,000,000.On February 5, 2024, Mr. Merritt filed a motion for defaultjudgment, asserting that although he had obtained properservice upon Judge Moore, she had failed to file an answer. OnSeptember 20, 2024, Judge Moore filed a motion to dismisspursuant to Tennessee Rule of Civil Procedure 12.02(6),stating that she had not been properly served with processuntil August 30, 2024. Judge Moore posited that Mr. Merritt'scomplaint should be dismissed because judicial immunitybarred his claims, which were based on the judicial act of herdismissal of a previous lawsuit. Judge Moore also assertedthat Mr. Merritt's claim failed to meet the minimum pleadingstandard for a 42 U.S.C. § 1983 claim and was barred by theapplicable one-year statute of limitations.Mr. Merritt filed two separate responses opposing JudgeMoore's motion to dismiss. Concomitant with the filingof his second response, Mr. Merritt also filed a “PlaintiffStatement of Undisputed Facts in Support of Motion forSummary Judgment” and a “Memorandum of Law inSupport of This Motion for Summary Judgment AgainstDefendant.” The record contains no separate summaryjudgment motion. However, Mr. Merritt's memorandumstates that he “respectfully moves the Court for summary
KENNETH MERRITT v. BETTY THOMAS MOORE, Slip Copy (2026)���WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2judgment pursuant to Rule 56 of the Tennessee Rules ofCivil Procedure.” Both the memorandum and statement ofundisputed facts include facts concerning alleged proceduralerrors in prior cases identified as “2035473” and “2065132.”On January 9, 2025, Judge Moore filed a motion to strikeMr. Merritt's statement of undisputed facts and memorandumof law, asserting that Mr. Merritt had failed to comply withTennessee Rules of Civil Procedure 5.02 and 56.03. Mr.Merritt filed a response in opposition, contending that hehad filed a valid motion for summary judgment and that themotion to strike should be denied. Mr. Merritt then filedanother motion for default judgment.*2 On April 14, 2025, Mr. Merritt filed a “Motion forClarification or Reconsideration and Renewed Request forDefault Judgment.” Mr. Merritt claimed that the trial courthad erred by denying his motion for summary judgmentwithout written explanation and in the absence of a responsein opposition from Judge Moore. Mr. Merritt requested thatthe court (1) reconsider its denial of his summary judgmentmotion, (2) provide a written ruling in his favor due to JudgeMoore's alleged failure to respond, and (3) enter defaultjudgment against Judge Moore. Mr. Merritt filed his affidavitsin support of the motion. On April 21, 2025, the trial courtentered a written order denying Mr. Merritt's motion forsummary judgment “[f]or good cause shown.”On April 25, 2025, Mr. Merritt filed another motionfor default judgment against Judge Moore along with anunnotarized affidavit. Subsequently, on June 2, 2025, Mr.Merritt filed a “Memorandum of Law in Support of Plaintiff'sMotion for Clarification Regarding Denial of SummaryJudgment,” asserting that the trial court should have provideda basis for its ruling rather than simply finding “good cause.”On June 4, 2024, Judge Moore filed a response regarding themotion for default judgment, asserting that she had filed amotion to dismiss in September 2024, which had extended thetimeframe within which she was required to file a responsivepleading. Judge Moore stated that the motion to dismiss hadnot yet been adjudicated.On June 20, 2025, the trial court entered an order grantingJudge Moore's motion to dismiss and denying Mr. Merritt'smotion for default judgment. The court concluded that Mr.Merritt's claims were barred by judicial immunity, warrantingtheir dismissal pursuant to Tennessee Rule of Civil Procedure12.02(6). The court denied Mr. Merritt's motion for default asmoot. Meanwhile, Mr. Merritt filed a motion to stay the court'sjudgment of dismissal, arguing that the dismissal was basedon a misapplication of the doctrine of judicial immunity. OnJuly 25, 2025, Mr. Merritt filed a notice of appeal.Upon this Court's review of the record on appeal to determinewhether this Court maintained subject matter jurisdiction,pursuant to Tennessee Rule of Appellate Procedure 13(b), weconcluded that the trial court's June 20, 2025 order was nota final, effective judgment from which an appeal as of rightwould lie. See Tenn. R. App. P. 3(a). This Court determinedthat the June 20, 2025 order failed to comply with TennesseeRule of Civil Procedure 58 because it contained neither Mr.Merritt's signature nor a certificate of service demonstratingthat it had been served upon him. Accordingly, this Courtentered an order remanding the matter to the trial court forentry of a final order. The trial court submitted a final order tothis Court on December 29, 2025, and this appeal proceeded.II. Issue PresentedAlthough both parties have raised issues for this Court'sreview on appeal, we determine that the following issueraised by the appellee, which we have restated slightly, isdispositive:Whether Mr. Merritt's brief properlycomplies with Tennessee Rule ofAppellate Procedure 27.III. AnalysisWe recognize that Mr. Merritt is a pro se litigant and respecthis decision to proceed self-represented. With regard to self-represented litigants, this Court has explained:Pro se litigants who invoke thecomplex and sometimes technicalprocedures of the courts assume a veryheavy burden. Conducting a trial witha pro se litigant who is unschooledin the intricacies of evidence and trialpractice can be difficult. Nonetheless,trial courts are expected to appreciate
KENNETH MERRITT v. BETTY THOMAS MOORE, Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3and be understanding of the difficultiesencountered by a party who isembarking into the maze of the judicialprocess with no experience or formaltraining.*3 Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn.Ct. App. 1988) (internal citations omitted). Parties proceedingwithout benefit of counsel are “entitled to fair and equaltreatment by the courts,” but we “must not excuse pro selitigants from complying with the same substantive andprocedural rules that represented parties are expected toobserve.” Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn.Ct. App. 2003). This Court must “be mindful of the boundarybetween fairness to a pro se litigant and unfairness to the prose litigant's adversary.” Id. Furthermore, “[p]ro se litigants arenot ... entitled to shift the burden of litigating their case to thecourts.” See Chiozza v. Chiozza, 315 S.W.3d 482, 487 (Tenn.Ct. App. 2009).Tennessee Rule of Appellate Procedure 27 dictates therequirements for an appellant's brief, stating in pertinent part:(a) Brief of the Appellant. The brief of the appellant shallcontain under appropriate headings and in the order hereindicated:...(2) A table of authorities, including cases (alphabeticallyarranged), statutes and other authorities cited, withreferences to the pages in the brief where they arecited;...(4) A statement of the issues presented for review;(5) A statement of the case, indicating briefly thenature of the case, the course of proceedings, and itsdisposition in the court below;(6) A statement of facts, setting forth the facts relevantto the issues presented for review with appropriatereferences to the record;(7) An argument, which may be preceded by a summaryof argument, setting forth:(A) the contentions of the appellant with respect to theissues presented, and the reasons therefor, includingthe reasons why the contentions require appellaterelief, with citations to the authorities and appropriatereferences to the record (which may be quotedverbatim) relied on; and(B) for each issue, a concise statement of the applicablestandard of review ... ;(8) A short conclusion, stating the precise relief sought.In addition to the requirements of Rule 27, appellantsmust also comply with Tennessee Court of Appeals Rule 6concerning the content of their briefs. Rule 6 provides inpertinent part:(a) Written argument in regard to each issue on appeal shallcontain:(1) A statement by the appellant of the alleged erroneousaction of the trial court which raises the issue and astatement by the appellee of any action of the trialcourt which is relied upon to correct the alleged error,with citation to the record where the erroneous orcorrective action is recorded.(2) A statement showing how such alleged errorwas seasonably called to the attention of the trialjudge with citation to that part of the record whereappellant's challenge of the alleged error is recorded.(3) A statement reciting wherein appellant wasprejudiced by such alleged error, with citations tothe record showing where the resultant prejudice isrecorded.(4) A statement of each determinative fact relied uponwith citation to the record where evidence of eachsuch fact may be found.(b) No complaint of or reliance upon action by the trialcourt will be considered on appeal unless the argumentcontains a specific reference to the page or pages of therecord where such action is recorded. No assertion offact will be considered on appeal unless the argumentcontains a reference to the page or pages of the recordwhere evidence of such fact is recorded.Taking into account and respecting Mr. Merritt's pro sestatus, we still must conclude that his appellate brief containsnumerous significant deficiencies with regard to the above-listed requirements. These deficiencies include: (1) the table
KENNETH MERRITT v. BETTY THOMAS MOORE, Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4of authorities is inaccurate because it contains case citationsthat do not appear in the body of the brief, lists incorrectpage numbers for many of the case citations that do appear,and contains at least one case authority that appears to benonexistent; (2) the statement of facts fails to include anycitations to the record whatsoever; and (3) the argumentsection fails to include any citations to the record and failsto cite to proper authority in some instances. We will addresseach of these failures in turn.*4 With reference to the table of authorities, we note thatits purpose is to “provide a list of authorities and where inthe brief they are cited in order to facilitate efficient appellatereview.” MidFirst Bank v. Cole, No. W2023-00440-COA-R3-CV, 2023 WL 8785890, at *5 n.10 (Tenn. Ct. App. Dec.19, 2023). Mr. Merritt's table of authorities is sufficientlyinaccurate such that it provides virtually no assistance inlocating the authorities cited within the brief. The pagenumbers listed therein, purportedly demonstrating the pageupon which each authority is to be found in the brief, aresubstantially incorrect. In addition, at least four of the casescited in the table of authorities do not appear in the brief atall despite having page numbers listed. Moreover, one of thecase authorities cited does not appear to exist inasmuch asthis Court has been unable to locate it utilizing either the casename, date, or citation provided. Accordingly, Mr. Merritt'stable of authorities does not “facilitate efficient appellatereview.” See id.Concerning the statement of facts, although Mr. Merritt doesprovide a somewhat limited statement of the facts in supportof his issues relating to Judge Moore's handling of the earlierlawsuit, he includes no citations to the record demonstratingthe portions of the record wherein these facts are established.In fact, Mr. Merritt's entire brief contains no citations to therecord whatsoever. As this Court has previously clarified:“Courts have routinely held that the failure to complywith even one of the Rule 27 requirements constitutesa waiver of the appellate issue.” Short v. Alston, No.W2022-00666-COA-R3-CV, 2023 WL 5294531, at *2(Tenn. Ct. App. Aug. 17, 2023); see, e.g., Gates v. Switzer,No. M2021-01552-COA-R3-CV, 2023 WL 6296290, at *3(Tenn. Ct. App. Sept. 27, 2023) (“Wife's arguments onissues four, five, and nine fail to include any citations tothe record and are therefore waived pursuant to Rule 27and Rule 6.”); Little v. City of Chattanooga, 650 S.W.3d326, 348, 353 (Tenn. Ct. App. 2022) (deeming variousissues waived for failure to cite to the record); Cnty. ofSumner v. Kalbes, No. M2020-01119-COA-R3-CV, 2021WL 4192319, at *2 (Tenn. Ct. App. Sept. 15, 2021)(“[O]ur courts have routinely held that the failure to makeappropriate references to the record as required by Rule27(a)(7) constitutes a waiver of the issue.”) (quotationomitted).State v. $133,429 in U.S. Currency, No. W2022-01075-COA-R3-CV, 2023 WL 6843430, at *3 (Tenn. Ct. App. Oct. 17,2023) (appeal dismissed for appellant's failure to comply withRule 27 regarding brief).Finally, in the argument section of Mr. Merritt's brief, henot only fails to include citations to the record, he also failsto include citations to relevant authority in support of hisarguments. Although some citations to authority concerninggeneral legal propositions are accurate, several other citationsdo not support the proposition for which they are citedor contain quotes that do not actually appear in the citedauthority. In addition, we reiterate that Mr. Merritt has citedto at least one case authority that does not appear to exist.1This Court has previously explained:[A] party's brief must “develop the theories or containauthority to support the averred position as required byTennessee Rules of Appellate Procedure 27(a).” Hawkins v.Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001). Moreover,“[i]t is not the role of the courts, trial or appellate, toresearch or construct a litigant's case or arguments for himor her, and where a party fails to develop an argumentin support of his or her contention or merely constructs askeletal argument, the issue is waived.” Sneed v. Bd. of Pro.Resp. of Supreme Ct., 301 S.W.3d 603, 615 (Tenn. 2010).*5 We also note that the brief does not cite the record.“Courts have routinely held that the failure to makeappropriate references to the record and to cite relevantauthority in the argument section of the brief as requiredby Rule 27(a)(7) constitutes a waiver of the issue.” Beanv. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000) (citationsomitted).Slate v. Smiley Bail Bonds, No. M2025-00463-COA-R3-CV,2026 WL 182494, at *2-3 (Tenn. Ct. App. Jan. 22, 2026)(dismissing appeal because the appellant's brief failed tocomply with Rule 27). See Barton v. Barton, 696 S.W.3d 571,594 (Tenn. Ct. App. 2024) (explaining that judges are “ ‘notlike pigs, hunting for truffles’ that may be buried in the record,or, for that matter, in the parties’ briefs on appeal.” (quoting
KENNETH MERRITT v. BETTY THOMAS MOORE, Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.5Nunley v. Farrar, No. M2020-00519-COA-R3-CV, 2021 WL1811750, at *6 (Tenn. Ct. App. May 6, 2021)).In the instant case, the deficiencies within Mr. Merritt'sappellate brief are substantial. As this Court determined inMurray v. Miracle, 457 S.W.3d 399, 402 (Tenn. Ct. App.2014):We are not unmindful of Plaintiffs’pro se status and have attempted togive them the benefit of the doubtwhenever possible. Nevertheless, wecannot write Plaintiffs’ brief for them,and we are not able to create argumentsor issues where none otherwise areset forth. Likewise, we will not digthrough the record in an attemptto discover arguments or issues thatPlaintiffs may have made had theybeen represented by counsel. To do sowould place Defendants in a distinctand likely insurmountable and unfairdisadvantage as this Court would beacting as Plaintiffs’ attorney.Similarly, we cannot unfairly disadvantage the appellee in thismatter by serving as Mr. Merritt's attorney. See id. Therefore,Mr. Merritt's issues presented on appeal are deemed waived.See Bean v. Bean, 40 S.W.3d 52, 54-55 (Tenn. Ct. App. 2000).For the reasons stated above, the appeal of this matteris dismissed. The case is remanded to the trial court forcollection of costs assessed below. Costs on appeal areassessed to the appellant, Kenneth Merritt.All CitationsSlip Copy, 2026 WL 2098349Footnotes1This Court has previously referred to such fabricated case citations as “Artificial Intelligence hallucinations,”described as “a widely reported phenomenon in which artificial intelligence programs create new informationthat has no basis in fact.” See Simmons v. Islam, No. M2025-01261-COA-R3-CV, 2026 WL 1431143, at *7(Tenn. Ct. App. May 21, 2026) (quoting Margie Alsbrook, Untangling Unreliable Citations, 37 Geo. J. LegalEthics 415, 446 (2024)).End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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