### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE D ec em be r 7, 200 6 S es sio n

C & W A SSET AC QUIS ITION, LLC , A S A SSIGN EE OF CH RY SLER FIR ST F INA NC IAL S ERV ICES CO RP ORA TION v. D ONA LD H. OGGS

Appeal f romthe Circ uit Court for Monroe C ounty No. V04324H John B . Hagler, Jr., Judge

No. E2006-01251-COA- R3-CV - F ILED JANUARY 30, 2007

D. M I CH A EL S WI NEY , J

. , d i s s en t i n g.

I respe ctfully

dissent from the majority ’s opinion. I would reve rse the T rial Court and

rema nd this matter for e ntry of judg ment as re quested a nd as prove n by the plaintiff.

I nitially , I cannot a g ree with the majority ’s re solution of the issues conce rning Mr. Og g s ’ f a i l u r e t o r e s p o n d t o r e q u e s t s f o r a d m i s s i o n a n d h i s f

a i l u r e t o p l e a d t h e a f

f i r m a t i v e d e f

e ns e of fa ilure of c onsideration. I believe the Trial Court’s resolution of t hese issues, as af firmed by the majority
, resulted in Mr. Ogg s having an unfair advantag e si mply beca use of his status as a pro s e litigant. I believe suc h a re sult is contrary to the law of this state.

As rec ently stated by

this Court i n a ca se involving a pro s e litigant’s untimely appea l of a fi na l ju dg me nt:

Whil e we rea liz e the “leg al naivete” of a pro s e litigant such

as F razier, we must not allow him an u n fa i r adva ntag e bec ause he repr esents himself. Irv in v . City of Cla rk sv ill e , 767 S.W .2d 649, 6 5 1

- 2 1 ( T e n n

. Ct

. A p p

. 1 9 8 9). Pr o s e litigants who invoke the complex and technical procedure s of t he courts assume a very heavy burden. Id

. At 6 5 2
, (c i t i n g Gr ay v . S til lm an W

hit e Co ., 522 A.2d 737, 74 1 ( R.I . 1 98 7) ). Whil e the y are e nti tle d to f

a ir a nde qu a l tr e a tme nt, they must follow the same proc edure s as a re prese nted part. Id

. (citations omitted).-2- We find it appropriate to include the following observa tion of the Eastern Section of t his Court, when face d with this same situation in Gr igs by v . U niv . o f T e nn. M e d. Ctr

. , No. E2005-01099- COA-R3- CV, 2006 WL 408053, at *2-3 (Tenn. Ct. App. Feb. 22, 2006). The Court was for ced to dismiss the appea l of a pro s e lit ig a nt b e c a us e his notice of a

ppeal wa s not tim ely

filed, and state d:

W e d o n o tfa v o r d i s m i s s i n g pro s e lit ig a nt s’ app e a ls

on what mi g ht appea

r to be tec hnicalities. Howe ver, while parties who choose to re prese nt themselves ar e entitled to fair a nd equal t reatment, they are not

e nti tle d to sh if

t th e bu rd e n o f l iti g a tin g the ir c a se to th e c o u r ts , see Do zie r v . F or d M oto r Co ., 702 F.2d 1189, 1194 (D.C. Cir. 1983), or to be excused from comply ing with the same substantive and pr ocedur al

re qu ir e me nts that othe r r e pr esen te d p art ie s mu st adher e to. Se e Ir

v in v . Ci ty of C lar

k sv ill e , 767 S.W .2d 649, 652 (Tenn. Ct. App. 1988). A ccor dingly , they must a c t w ith in th e ti mep e r io d s p r o v id e d b y the

app lic able statutes andru le s in or de r t o h a ve the ir

case s considere d. See W illiams-Guice v. B oard of Educ
., 45 F .3 d 1 61 , 1 64 (7 Cir . 1 99 5) ; Kelley v

. th S e c r e ta r y , U n it e d S ta te s D e

p ’ t o f L a b or , 812 F.2d 1378, 1380 (F ed. Cir. 1987).

Id

. (c i t i n g Goad v. Pasipanodya , No. 01A01-9509- CV-00426, 1997 WL 749462, at *2 (Te nn. Ct. App. D ec. 5, 1997)). Unf ortunately Mr. Fr azier’s a

ppeal wa s not tim ely

filed, and t h erefore we may not consider the issues he has pr esente d for our revie w.

Fra zie r v . Ca mpbe ll , No. W2006-00031-COA-R3-CV, 2006 WL 2506706, at *3 (Tenn. Ct. App. W.S ., Aug ust 31, 2006), no appl. perm. appeal filed

.

First, as to Mr

. Og g s’ failure to respond to plaintiff’s pr operly submitt ed re quests for

a dmi ssi on , I

wo uld ho ld the Tr ia l Cou rt e rr e d b y a llo wi ng Mr . O g g s n e ve r t o r e sp on d to the re qu e sts fo r a d m i s s i o n

. T h e T ri al C o u rt d i d s t at e t h at i two u l d al l o w M r. Oggs t o re s p o n d i n co u rt , al t h o u gh i ti s u n c l e ar

w h e t h e r o r n o tt h i s o r a l r e s p o n s e w a s t o b e a ts o m e h e ar i n g b e f o r e t r i a l o r a t t r i a l

. In

e ith e r e ve nt, I be lie ve it wa s e rr or by the Tr ia l Cou rt to pr oc e e d thi s wa y a s th e Tria l Co urt, i n e ff

e c t, simply re mov e d Ru le 36 fr om the Te nn e sse e Rul e s o f C ivi l Pr oc e du re a nda llo we d M r. Og g s, so le ly beca use he w as a pro s e litigant, not to have to r espond to these pr operly su b m i t t ed reque sts for admission. I f Mr. Og g s was allowe d to “re spond” ora lly at some pre -trial hea

ring wher e there was
no transcript or written rec ord made, such a “re sponse” was no response at all. I f the Trial C o urt allowed Mr. O g g s to “respond” to the reque sts for admission by answe ring questions put to him on-3-

cross-e x amination at trial, that likewise is no “ response ” to the re quests for a dmission but instead is nothing more tha n just that, answe ring questions on cross-e x amination at trial. I n either event, I believe the Trial Court er

red by g iving Mr. O g g s an unfair adva ntag e bec ause he is a pro s e litigant by holding that Rule 36 of the Tenne ssee Rules of Ci v i l P ro ce d u re d id not apply to him. There simply was no rea son for Mr. Og g s, solely beca use of his status a s a pro s e litigant, “to be excused from c o mp ly in g w it hth e s ame s u b stantive and proc edura l require ments that other re prese nted parties must adhere to.” Frazier , 2006 WL 2506706, at *3.

L ike wi se , I

do no t a g re e wi th the ma jority ’s c on c lusio n tha t Mr . O g g s’ fa ilu re to

re sp on d to the re qu e sts fo r admi ss io n and the Tria l Co urt’ s f a ilu re to r e qu ir e him

to c omp ly

wi th Rule 36 was inconse quential and ther efor e harmless. Fra nkly
, I believe if Mr. Og g s had admitted

e ve n ju st the la st r e qu e st f or a dmi ssi on : “ Ple a se a dmi t th a t ba la nc e his tory a tta c he d a s E xhibi t B ref lects the c harg es and pa y ments made to my cre dit ag ree ment”, it most definitely would have be en
a n ad mis sio n by Mr . Og g s tha t suc h ch arg e s andpa y me nts we re tho se a dv a nc e s ma de a ndpa y me nts

re ce i v ed u n d er t h at cr ed i t agr ee m en t as t h at i s , d es p i t e t h e m aj o ri t y ’s re i n t er p re t at i o n o f t h e l an gu age of the re qu e st, e xac tly

wh a t it sa y s.

Th e Tr ia l Co urt’ s e rr or , a ndno w af fi rm e d by the ma

jority , with re g ard s to Mr . O g g s’ tot a l f a ilu re to r e sp on d to the re qu e sts fo r a dmi ssi on is the n c omp ou nded by ho w the m a jority disposes of plaintiff’s a

rg ument conce rning M r. Oggs ’ fa ilure to plead the aff irmative def

ense of failure of consider ation. Once ag ain, t he majority excuses Mr. Og g s from comply ing w ith the Rules of Civil P roce dure simply beca use of his status as a pro s e lit ig a nt. To take Mr . O g g s’ state me nt i n his answer

that he had no know ledg e of the debt claimed a nd did not o we i t , an d t o some way transform that into langua g e sufficie nt to satisfy Rule 8.03 of the Te nnessee Rules of Civil P roce dure requiring the aff

irmative defe nse of failure of consideration to be plead is a leap too gre at fo r any
c ou rt to m a ke . Ru le 8. 03 sa y s th a t Mr . O g g s “s ha ll s e t f or th a ff ir ma tiv e ly

fa c ts i n s ho rt

a ndpla in te rm s r e lie d u po n to c on sti tut e

.. . f a ilu re of c on sid e ratio n .

.. .” Cle arl y , Mr

. Og g s ple a d no su c h f a c ts. Mr. Og g s never

once sa id in his answer, or e ven at tria l for that matter , that he n ever rec eived the money . The most he ever said, even at trial, was that he had no rec ollection of t he debt or rec eiving the mon e y , a ndin h is a ns we r the mos t he c la ime d wa s tha t he ha d no kno wl e dg e of the de bt a nddid not owe it.

Putti ng aside for now Mr. Og g s’ trial testimony and looking solely

at his answer , I am completely at a loss as to what the plaintiff wa s suppose to have done . Apply ing the majority ’s

rea soning, Mr. Og g s, solely beca use he is a pro s e litigant, could in his answe r say only that he does not know ab out or owe the debt and then be allowed to show up a t trial, after first having been excused from re sponding to re quests for a dmission, and raise any of the af fi rm ative def

enses se t forth in Rule 8.03. Perhaps what Mr. Ogg s meant when he said he did not owe the debt wa s that he ha d p a id i t ; p e rh ap s t h a t t h e r e w a s d u r e s s ; p e rh ap s t h a t e s t o p p e l o r f r a u d ap p l i e d ; p e rh ap s t h a t a statut e of lim ita tio ns or

sta tut e of re po se app lie d; p e rh aps that so me oth e r s ta tut e su c h a s tr uth in len di ng app li e d. Un de r the ma jority ’s de c isi on , p la int if f w a s r e qu ir e d to c ome to c ou rt re a dy to addre ss whateve r possible or potential non-ple ad af firmative de fense s Mr. Og g s as the pr o s e-4-

defe ndant m ight for t he first time raise during the t rial. Such a result totally emasc ulates Rule 8.03 of the Te nnessee Rules of Civil P roce dure.

I do not mean to say

that a pro s e lit ig a nt su c h a s Mr

. Og g s mus t us e th e ma gic phrase , “fa ilure of consideration”, or risk failing to comply

with Rule 8.03. Howeve r, it is not

unrea sonable to avoid g iving a pro s e lit ig a nt an un fa ir a dv a nta g e to re qu ir e that litig a nt t o d o e xac tly what Rule 8.03 say s and that is to set forth af firmatively

the facts relied upon to c onstitut e wha tever the af firmative de fense may

be. He re f

or example, if it was Mr. Og g s’ position a s the majority has found that he never rec eived the money sued for, all he had to ple ad was “I never g ot the money .” I nstead, the Trial Court’s ruling as now a ffirme d by the majority

left this plaintiff, as i t will every other similar plaintiff, g uessing which of the long list of af firmative defense s contained in Rule 8.03 may be ra ised for the first time at trial, or appar ently even later on a ppeal, by the pro s e defe ndant

a s a de fe ns e . T o h old , a s th e ma jority do e s, that th e pla int if

f sh ou ld hav e be e n r e a dy to a dd re ss
a nythi ng ra ise d f

or the fi rs t ti me a t tr ia l by

Mr . O g g s d oe s e xac tly

wh a t is pr oh ibi te d a nd that is t o put Mr. Ogg s, solely beca

use of his status as a pro s e litigant, in better shape that he would have been had he be en re prese nted by an attorne y

.
Th e ma jo ri ty ’s ho ldi ng a llo ws pro s e litigants, solely beca use they are pro s e lit ig a nts , to be excused fr om answering r equests for admission and to be excused fr o m co m ply ing w ith the Rules of Civil Procedur e requiring the pleading of the fac ts of any aff irmative def

ense. F urther, the majority ’s holding then puts the pa rty opposing the pro s e lit ig a nt in the po sit ion of ha vin g to g ue ss what the pro se litigant’s position may be at tria l. T he majority then say s that the litigant re prese nted by counsel, be cause of Tenn. R. Civ. P. 15.02, is stuck beca use som e is sues and defense s that were not raised by

the pro se litigant in his pleading s were then tried by implied consent.

Th e re c or d b e fo re us sh ow s that the pla int if f he re ne ve r g a ve its imp lie d c on se nt t o try these issues and in f

act f iled a motion conc erning Mr. Og g s’ fa ilure to respond to the r equests for admission. Mr. O gg s should have bee n require d to comply with the Rules of Civil P roce dure by responding in writing be fore trial to the proper ly submitt ed Rule 36 reque sts f or admission or they should have be en dee med admitted as pr o v i ded by Rule 36 itself. Mr. Og g s should have bee n
re qu ir e d to c omp ly

wi th R ule 8. 03 by

ple a din g fa c ts s uf

fi c ie nt t o p ut the pla int if

f o n not ice that it

wa s M r. Oggs ’ de fe n s e th at h e ne v er re ce i v ed t h e m o n ey

. As t h i s i s n o twh at h ap p en ed
, M r. Oggs

wa s g ive n a n un fa ir a dv a nta g e so le ly be c a us e of

his pro s e status. The Tr ial Court erre d in excusing Mr. Og g s from “c omply ing w i th the same substantive a nd proce dural re quirements that other repr esente d parties must adhe re to.” Frazier , 2006 WL 2506706, at *3.
Having expressed my

inabilityto c oncur with the majority ’s dec isions as to the issues

conce rn in g M r

. O g g s ’ f

a il u r e to p le a d f

a il u r e o f c o n s id e r a ti o n a n d h is f a il u r e to r e s p o n d to the

re qu e sts fo r a dmi ssi on a ndthe Tr ia l Co urt’ s e rr or in e xcu sin g him

fr om c omp ly ing wi th the se Rul e s, I now turn to the m aj o ri t y ’s decision conc erning plaintiff’s re maining issue of whether or not the evidenc e preponderates ag ainst the Trial Court’s decision t hat pl aintiff fa iled to meet its burden of proof. I believe a review of that issue can not be made without first addressing , as discussed a bove,-5-

the Trial Court’s err ors in reg ard to the r equests for admission and Mr. Og g s’ fa ilure to plead f ailure of consider ation.

I take no issue with the Statement of Evidence as quoted in the majority ’s opinion. I thi nk the e vid e nc e sh ow n in that Stat e me nt of the Ev ide nc e , w hic h, a lon g wi th the tr ia l e xhibi ts, is all this C ourt has bef

ore it as to the e vidence prese nted at trial, c lear ly shows the evidenc e preponde rate s ag ainst the Trial Court’s de cision that Plainti ff f ailed to ca

rry its burden.
The majority

couche s it in t erms of the Trial Court b ei n g fa ce d with “conf licting testimony .” Fr ankly , I

believe the re w as no conflict betwee n plaintiff’s acc ount ma nag er’ s and Mr. Oggs ’ t es t i m o n y

. T h e r ea s o n fo r t h i s i s re fl ec t ed i n t h e S t at em en t o f t h e E v i d en ce i t s el f. M r. Oggs

ne ve r t e sti fi e d th a t he didno t r e c e ive the mon e y . I ns te a d, a ll M r. Og g s te sti fi e d to , a s se t f orth i n the Statement of the Evide nce, is “ that he had no recollec tion of this de bt or rec eiving money from the line of c redit, and the reby denied owing the plaintiff.” [emphasis a dded.] I n other wor ds, all Mr. Og g s testified to was that he r emember ed neither the debt nor g etting any money . Mr. Og g s never testified he did not g et the money . Say ing tha t he did not rec ollect re ceiving money from the line of c re dit is n ot the sa me a s say ing he didno t r e c e ive mon e y fr om the lin e of

c re dit

.
This failure of

Mr. Og g s to te stify that he neve r g ot the money but rather only that he didno t r e c oll e c t e ith e r the de bt i tse lf or g e tti ng mon e y

fr om the lin e of cr edi t is mo re that ou tweig hed by

Mr. Og g s’ conce ssion a t tr ial when he “admitted that it wa s his signature on the line of

cre dit ag ree ment (Exhibi t 1) and that it appe are d to be his signa ture o n t h e t wo chec ks [m aking pay ments on the ac count for w hich plaintiff wa s suing] (Exhi bit 2).” As stated in the Statement of Ev ide nc e , M r. Og g s’ tw o p e rs on a l c he c ks ma de a s p a y me nts on th e accoun t su e d o n s pe c if ic a lly

re fe r t o th e “ Natio ns Cr e dit [pla int if f’ s u nd isp ute d p rede cess or] a c c ou nt n umb e r. ” Cle arl y it i s undisputed from the Statement of E vidence befor e us that Mr. Og g s made at least two pay ments by chec k o n th e s p e c if

ic a c c o u n t s u e d u p o n b y p la in ti f f
, d e s p it e h is s tate me n t th a t h e “ h a d no

re c oll e c tio n o f this de bt o r r e c e ivi ng mon e y fr om the lin e of

c re dit

.. .. ” F ro m th e re c or d b e fo re us , it is undi sputed that Mr. Og g s rec eived money from the line of cre dit as he made at least two pay ments by

chec k on that specific line of cre dit. This is so despite Mr. Og g s’ inability to rec ollect the de b t o r r e c o ll e c t r e c e iv in g mo n e y

. T h e f a c t th a t h e d o e s n o t r e me mb e r th e d e b t o r reme mber

rec eiving money

from the line of

cre dit sim ply

does not contra dict his c oncessions at trial, that the sig na tur e s w e re his , a ndthe do c ume nta ry e vid e nc e sh owi ng th at he d id r e c e ive mon e y fr om this sp e c if ic lin e of c re dit a s h e wr ote a t le a st t wo c he c ks makin g pa y me nts on thi s li ne of c re dit

. The majority ’s attempt to couch this as a battle of c redibility

is mispl ac ed

. I f Mr. Og g s had testified that he never rec eived a ny

money from this line of cr edit or that he ne ver e ntere d into this debt or that he had paid off the line of cr edit, then it would have be en a c redibility question. That is not what happe ned. The majority makes the statement that “Mr. Og g s did not deny that he had in the past transac ted bus iness pursuant to the l oan agr eeme nt, but only that he did not owe the debt cur rently asserted by

C & W.” Respec tfully , that is not what Mr. Og g s said or denie d. What Mr . O g g s te sti fi e d to , a s sh ow n in the Sta te me nt o f E vid e nc e , is that “he ha d n o r e c oll e c tio n o f this debt or re ceiving money

from the line of

cre dit....” I

see no w ay

short of magic t o t ra n s form Mr.-6-

Og g s’ testimony

that he had “ no rec ollection of this debt or re ceiving money from the line of

cre dit...” into testim ony that he admitted in the past having transac ted business pursuant to the loan ag ree ment, including r ece iving money from the line of

cre dit, but that he had not rec eived the mone y
curr ently sued for by plaintiff. That si mply is not what he said. He testified only to “no re collection of this debt or rec eiving money from the line of

cre dit....” Clearly

and without doubt as shown by his conce ssions at trial and his two chec ks making pay ments on the very acc ount sued on by plaintiff, Mr. Og g s definitely did r ece ive money from this line of c redit eve n though he has no “r ecollec tion” of having done so.

I disag ree with the majority as I do not believe a ny

cre dibilit y

as s essm ent was require d of the two witnesse s. Mr. Og g s’ testimony never was contra ry to the evidenc e pre sented by plaintiff, but r ather only was that he had no re collection of the debt or re ceiving money from the line of credit, even though his conce ssions at t rial and the documenta ry evidenc e cle arly

prove tha t he did re ceive money

from this line of cr edit. All Mr

. Og g s testified to was that he did not remember this debt and did not remember g etting mone y

from the line of

cre di t

. The fa ct that he doe s not

re me mbe r the de bt o r r e me mbe r g e tti ng a ny mon e y fr om the lin e of

c re dit is n ot i nc on sis te nt w ith the plaintiff’s pr oof that Mr. Og g s did sign the line of cre dit ag ree ment and that Mr. Ogg s did rece ive the money

sued for

. Respectf ull y , I b eli eve this is a situation where the pro s e lit ig a nt w a s u nf a ir ly advanta g ed, solely

beca use he w as a pro se litigant, both at trial and now befor e this Court. Both the T r ia l Co u r t a n d n o w th e ma jo r it y in th e ir a tt e mp ts to in s u r e th a t M r. Og g s as a p ro se litigant

rec eived “ fair a nd equal treatment” ha ve instead a llowed “him an unf air a dvantag e bec ause he repr esents himself.” Frazier , 2006 WL 2506706, at *3. I respe ctfully

sug g est that the one le sson to b e le arn e d b y

la wy e rs a ndfu tur e lit ig a nts fr om the ma jority ’s op ini on is that if y ou fi ndy ou rs e lf in a si tuation simil ar to Mr. Og g s, do not hire a law y er but instead pr ocee d pro se so that the Rules of Civil P roce dure w ill not be applied to y ou, and t h at every thing y ou say in that lawsuit will be

c o n s t ru e d t o m e a n w h a ti tw a s yo u m i g h th a v e s a i d a s o p p o s e d t o w h a tyo u a c t u a l l y d i d s a y.

I would reve rse the T rial Court and rema nd this matter for entry of judg ment in favor of plaintiff for

the amount sued for

as plaintiff met its burden.

___________________________________ D. MI CHAEL

SW I NEY, JUDGE