FILED

March 26, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

JAMES E. SWIGGETT, ) JOHNSON CHANCERY

 ) C. A. NO. 03A01-9709-CH-00430

 Plaintiff-Appellant )

 )

 )

 )

 )

 )

vs. ) HON. G. RICHARD JOHNSON

 ) CHANCELLOR

 )

 )

 )

 )

 )

CARL R. OGLE, JR., and ) AFFIRMED AND REMANDED

J. MICHAEL KERR, )

 )

 Defendants-Appellees )

JAMES E. SWIGGETT, Appellant, Pro se.

CARL R. OGLE, JR., and J. MICHAEL KERR, Appellees, Pro se.

O P I N I O N

McMurray, J.

This action originated as an action for legal malpractice.

The appellant, who is an inmate in a Department of Corrections

facility, alleges that he filed a civil rights action, pro se, in

the Federal District Court at Greenville against certain officials
2

o f Hawkins County. He further avers that after filing the action,

h e contracted with the defendant, Ogle, to represent him. Under

the terms of the agreement, Ogle accepted employment by the

plaintiff whereby it was agreed that Ogle would receive a nonrefundable fee of $7,500.00 and $2,500.00 for investigation and

preparation of depositions, and that any unused portion of the

$2,500.00 wo uld be refunded. The appellant further charges that

Ogle failed to do any investigative work or prepare any depositions. He asserts that Ogle, t hereb y, breached his contract of

employment and refused to refund monies owed to the plaintiff.

The plaint iff further claims in his complaint that "in the

event the suit was dismissed the full amount of $2,500.00 would be

refunded." He further charges that the "defendants/embezzlement of

plaintiff's funds ... was the primary factor in the dismissal of

plaintiff's lawsuit." He see ks a m oney judgment and punitive

damages against the defendants.

The defendants filed a motion to dismiss pursuant to both Rule

1 2 and Rule 56, Tennessee Rules of Civil Procedure. In support of

their motion, the affidavit of Carl R. Ogle, Jr., was filed. The

affidavit is rather lengthy and is attached hereto as an appendix

to this opinion. The plaintiff filed a response to the motion to

dismiss, however, he failed to present any countervailing evidence,

b y aff idavit or otherwise. The court considered the defendants'
3

motion as a motion for summary judgment and sustained the motion on

the grounds that the plaintiff failed to counter Ogle's affidavit

a s to the standard of requisite care citing Krug v. Ambrose,

Wilson, Grimm & Durand , 845 F.Supp 522, affirmed 16 F.3d 1220,

certiorari denied 114 S.Ct. 2103, 128 L.Ed.2d 664. The trial court

also found that with respect to the claim for the return of monies,

the monies were not tendered to the defendant by the plaintiff, but

his sister, Pat Lowe, with whom defendant corresponded directly

concerning the potential return of those mon ies not used for

expenses. He further found that Pat Lowe was a necessary party to

this ac tion and also found that the failure to join a neces sar y

party constituted grounds for dismissal pursuant to Rule 19,

Tennessee Rules of Civil Procedure.

The appellant frames his issues for our review as follows:

Whether the Chancery Court in granting summary

judgment improperly decided appellant's issue of the

defendant's failure to comply with the contractual

agreement for attorney services.

Point I

The Chancery Court should not have granted summary

judgment because the factual disputes were ignored.

Point II

The Chancery Court should not have granted summary

judgment on appellant's failure to counter the

defendant's affidavit.

Point III
1

Rule 56 was amended subsequent to the filing and resolution of the motion for

summary judgment in this case.

4

The Chancery Court should not have granted summary

judgment fo r failure of the appellant to amend

[sic] a third party.

Rule 56, Tennessee Rules of Civil Procedure, (at all ti mes

material hereto) provided in pertinent part provides as follows: 1

* * *

56.02. For Defending Party. — A party against whom

a claim, counterclaim, or cross-cla im i s asserted or a

declaratory judgment is sought may, at any time, move

with or without supporting affidavits for a s u mmary

judgment in the party's favor as to all or any part

thereof.

56.03. Motion and Proceedings thereon. — The motion

shall be served at least thirty (30) days before the time

fixed for the hearing. The adverse party prior to the

day of hearing may serve opposing affidavits. The

judgment sought s hall b e rendered forthwith if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as

a matter of law. ... . 

* * *

56.05. Form of Affidavits — Further Testimony —

Defense Required. — Supporting and opposing affidavits

shall be made on personal knowledge, shall set forth such

facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to

the matters stated therein. Sworn or certified copies of

all papers or parts thereof referred to in an affidavit

shall be attached thereto or served therewith. The court

may perm it a ffidavits to be supplemented or opposed by

depositions, answers to interrogatories, or further

affidavits. When a motion for summary judgment is made

and supported by this rule, an adverse party may not rest

upon the mere allegations or denials of the ad verse
5

party's pleadings, but his or her response, by af fidavits

o r as otherw ise provided in this rule, must set forth

specific facts showing that there is a genuine issue for

trial. If the adverse party does n ot res pond, summary

judgment, if appropriate, shall be entered a gain st the

adverse party. ... (Emphasis added). 

56.06. When Affidavits Are Unavailable. — Should it

appear from the affidavits of a party opposing the motion

that such par ty cannot for reasons stated present by

affidavit facts essential to justify the opposition, the

court may refuse the application fo r ju dgment or may

order a continuance to permit affidavits to be obtained

or depositions taken or discovery to be had or may make

such other order as is just.

Our standard of review in consid erin g the propriety of

summary judgment is well-settled:

The standards governing an appellate court's review

o f a trial court's action on a motion for summary

judgment are well sett l ed. Since our inquiry involves

purely a question of law, no presumption of correctness

attaches to the trial court's judgment, and our task is

confined to reviewing the record to determine whether the

requirements of Tenn. R. Civ. P. 56 have been met. Cowden

v . Sovran Bank/Central South , 816 S.W.2d 741, 744 (Tenn.

1991). Tenn. R. Civ. P. 56.03 provides that summary

judgment is only appropriate where: (1) there is no

genuine issue with regard to the material facts relevant

t o the claim or defense contained in the motion, Byrd v.

Hall [v. Hall] , 847 S.W.2d 208, 210 (Tenn. 1993); and (2)

the moving party is entitled to a judgment as matter of

law on the undisputed facts. And erson v. Standard

Register Co ., 857 S.W.2d 555, 559 (Tenn. 1993). The

moving party has the burden of proving that its mo tion

satisfies these requirements. Downen v. Allstate Ins.

C o ., 811 S.W.2d 523, 524 (Tenn. 1991).

The standards governing the assessment of evidence

i n the su mmar y judgment context are also well established. Courts must view the evidence in the light most

favorable to the nonmoving party and must also draw all

reasonable inferences in the nonmoving party's favor.

Byrd , 847 S.W.2d at 210-11. Courts should grant a summary
6

judgment only when both the facts and the conclusions to

b e drawn fro m t he facts permit a reasonable person to

reach only one conclusion. Id.

Carvell v. Bottoms , 900 S.W.2d 23 (Tenn. 1995).

Rule 56.05 provides that the nonmoving party cannot

simply rely upon his pleadings but must set forth

specific facts showing that there is a genuine issue of

material fact for trial. "If he does not so respond,

summary judgment . . . shal l b e entered against him."

Rule 56.05. If the motion is denied, t he moving party

"has simply lost a preliminary skirmish and must proceed

t o trial." Williamson [Cty. Broadcasting v. W. Cty. Bd.

of Ed. , 549 S.W.2d 371 Tenn. 1977)] at 372. 

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

I n this case, the plaintiff has failed to respond by affidavit

or otherwise produce competent evidence to demonstrate that there

i s a genuine issue of a material fact. Further, h e did no t take

advantage of Rule 56.06 and file an affidavit that he cannot

present facts essential to justify the opposition for reasons

stated in the affidavit.

While it is the policy of this court to construe pleading,

etc., as favorably as possible to a non-lawyer, pro se litigant, we

cannot completely ignore prevailing law.

The record reflects that the motion for summary judgment dated

March 15, 1996 was filed on March 18, 1996. The motion contains a

certificate of service showing that the motion was served on the
7

plaintiff by mail. The certificate is dated March 15, 1996. On

April 15, 1996, the plaintiff filed a pleading styled "Motion to

Strike the Defendant's Motion to Dismiss." The pleading was not

filed under oath and, therefore, cannot be treated as an affidavit

i n opposition to the defendants' motion for summary judgment.

Further pleadings were subsequently filed but are not material to

the issues presented on this appeal.

O n July 22, 1996, the defendants filed a notice that the

motion for summary judgment would be heard on September 3, 1996.

The notice contains a certificate of service that a true and exact

copy had been served on the pl ainti ff "by depositing same in the

United States Mail, this 18th day of July, 1996." On August 13,

1996, the plaintiff filed an unsworn pleading styled "Rebuttal and

Response to Motion to Dismiss." On September 6, 1996, an order was

entered sustaining the motion for summary judgment.

O n September 30, 1996, the plaintiff filed an unsworn "Motion

t o Alter or Amend Judgment." Plaintiff f iled with the motion a

letter from Mr. Ogle to Ms. Pat Lowe, acknowle dging receipt of a

cashier's check in the amount of $10,000.00. The letter stated "Of

this amount, $7,500.00 will be my retainer and it is nonrefundable.

The amount of $2,500.00 will be put in an ac count to be used for

expenses in preparation for the case. ..." An affidavit of
8

Patricia S. Lowe was also filed which stated, among other things,

the following:

* * *

2 . I do not personally have any knowledge of the law

and do not and have not been a party to this lawsuit.

3 . The money that was sent to Mr. Ogle to retain him

for this case was a gift to my brother (James E.

Swiggett) and any monies due for refund or settlement

should be directed to James E. Swiggett.

4 . I do not wish to be contacted by Mr. Ogles'

office in reference to this case or for any other reason.

O n May 12, 1997, the court entered an order overruling the

motion to alter or amend the jud gment, sta ting that there is no

basis in law or fact for the relief requested. We concur with the

result reached by the trial court.

I n sum and substance, the affidavit o f the defendant, Ogle,

standing unrebutted, constitutes grounds for a summary judgment as

a matter of law. No countervailing evidence or any reason has been

advanced by the plaintiff which would prevent the entry of a

summary judgment against him. Assu ming that the plaintiff's

sister, Patricia S. Lowe, was not a necessary party, the result

would be the same. Therefore, we concur with the result reached by

the trial court.
9

The appellant has filed motions in this court asking that we

consider post-judgment facts. We have reviewed the post-judgment

facts which the plaintiff has proposed for our consideration. Even

i f we were to consent to consider the post-judgment facts, nothing

is presented which would alter the opinion in this case. Accordingly we decline to formally consider the post-judgment facts.

W e affirm t he j udgment of the trial court. Costs of this

appeal are assessed against the appellant and this case is remanded

to the trial court.

 ________________________________

 Don T. McMurray, Judge

CONCUR:

___________________________________

Houston M. Goddard, Presiding Judge

___________________________________

Charles D. Susano, Judge
1 0

APPENDIX

IN THE CHANCERY COURT FOR JOHNSON COUNTY, TENNESSEE

JAMES E. SWIGGETT,

 Plaintiff,

v . No. 4702

CARL R. OGLE, JR., 

and J. MICHAEL KERR,

 Defendants.

AFFIDAVIT OF CARL R. OGLE, JR .

Comes now the Affiant, Carl R. Ogle, Jr., and after having

first been duly sworn according to law, makes the following oath:

1 . I , Carl R. Ogle, Jr., am a citizen and resident of

Jefferson County, Tennessee. I have personal knowledge of the

information contained herein. I obtained my law degree from the

University of Tennessee School of Law in 1975, and was admitted to

the Tennessee Bar that same year. I hav e been l icensed and

practicing law in Jefferson County, Tennessee for over twenty

years. I am in the general practice of law with a concentration in

civil and criminal litigation. I am licen sed t o practice in all

courts of Tenne ssee, the United States District Court for the

Eastern District, the United States Court of Appeals for the Sixth

Circuit, and the United States Supreme Court. I am familiar with

the standards of care, con duct , and competency required of

attorneys in Tennessee and the United States Federal Court system.

2 . Mr. James Swiggett corresponded with me several times in

late 1992, beginning on or about September 2, 1992. Mr. Swiggett

was seeking an attorney to represent him in a civil rights

complaint that he had filed in the United States District Court for

the Eastern District of Tennessee against officials of Hawkin s

County and Greene County, Tennessee. On November 17, 1992, I
1 1

informed Mr. Swiggett that I did not have enough information on

which to make a decision as to whether or not I could represent

him. He provided me with the complaint and some other documents,

and I informed him by letter of January 8, 1993, that I could not

see my way clear to be involved in his lawsuit because of time

restraints. I furt her infor med him that should he be able to

obtain a continuance of his trial date, and wanted me to represent

him, that I would require a sizable retainer. Mr. Swiggett was

persistent in wanting me to represent him, and persuaded hi s

sister, Pat Lowe, to pay our fee of $7,500.00, and a further amount

o f $2,500.00 to be used for expenses in pre parat ion of the case.

I acknowledged receiving the $10,000.00 to Ms. Pat Lowe on March 2,

1993. At that time, Ms. Lowe lived in Maryville, Tennessee. I

then represented Mr. Swiggett in the United States District Court

and the Sixth Circuit Court of Appeals, and until he decided on

March 22, 1995, that he did not wish to file a writ of certiorari

t o the United States Supreme Court. Mr. Swiggett's case against all

defendant s w as dismissed by Order of the United States District

Judge, Thomas G. Hall [sic] on October 7, 1993, by grant of summary

judgment as to all defendants. The motions for summary judgment

were g ranted in part because of Mr. Swiggett's deposition, which

was taken prior to my repres enting him. In that deposition, he

made sev eral admissions which the court relied upon in granting

summary judgment. One cause of action was dismissed because of the

statute of limitations. On behalf of Mr. Swiggett, we appealed to

the United States Sixth Circuit Court of Appeals, and the judgment

o f the United States District Court was upheld on February 24,

1995.

3 . During the entire prosecution of this case, at both the

trial court and appellate court level, Mr. Swiggett was an active

and interested participant. He was kept fully informed at all

stages of th e proc eedings through written correspondence and

extensive telephone conversations, primarily with Mr. Kerr. Mr

Swiggett was assisted by a legal aid or "jailhouse lawyer" during
1 2

these proceedings, and frequently offered suggesti o ns and input

into his case. Mr. Swiggett did not appear to be dissatisfied with

the legal representatio n h e was receiving until the trial court

granted summary judgment. Even then, he expressed satisfaction

with the preparation and briefing of his appeal. Again, he

provided input and suggestions in the appeal process afte r

consultation with his legal aid at the prison. His complaints

about his representation arose only when the United States Court of

Appeals for the Sixth Circuit confirmed the judgment of the

District Court.

4 . Mr. Swiggett's main concern seemed to be that we had not

filed for summary judgment on his behalf. This would have been a

useless pleading under the facts of his case.

5 . Mr. Swiggett's complaint to me, prior to the filing of

his complaint in the Chancery Court of Johnson County, was that he

wanted a refund of his retainer and expense money. It was clearly

explained to Mr. Swiggett and confirmed by his sister, Pat Lowe,

who paid the retainer and expense money, that the $7,500.00

retainer would be nonrefundable.

6 . Mr. Swiggett has also demanded return of any unused

portion of the $2,500.00 paid by his sister for expenses. A good

portion of this money was used for expenses, which included

printing and copying costs, telephone bills, and transportation to

Cincinnati, Ohio, to argue before the United States Sixth Circuit

Court of Appeals. Any unused portion remains in my Trust Account

and it is my opinion that the refund of this money would be due to

Ms. Pat Lowe, who advanced the money. Ms. Lowe had made no demand

for the money. It is my understanding that she no longer lives in

Tennessee, and I am unaware of her current address. Mr. Swiggett

has not provided me with her whereabouts. If he does so, or if she

contacts me, I will be glad to refund any amounts due to her.

7 . I have reviewed the file in this case, and it is my

professional opinion that I represented Mr. Swiggett throughout the

case in a competent matter, [sic] and certa inly within the
1 3

standards of care, competency, and conduct expected of attorneys in

Tennessee. The same is true for J. Michael Kerr, my associate and

employee.

FURTHER AFFIANT SAITH NOT.

/S/ Carl R. Ogle, Jr. 

CARL R. OGLE, JR.

STATE OF TENNESSEE

COUNTY OF JEFFERSON

Sworn to and subscribed before me this 15th day of March 1996.

/s/ Kasey Chesney 

NOTARY PUBLIC

My Commission Expires 1/18/2000 
 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

JAMES E. SWIGGETT, ) JOHNSON CHANCERY

 ) C. A. NO. 03A01-9709-CH-00430

 Plaintiff-Appellant )

 )

 )

 )

 )

 )

vs. ) HON. G. RICHARD JOHNSON

 ) CHANCELLOR

 )

 )

 )

 )

 )

CARL R. OGLE, JR., and ) AFFIRMED AND REMANDED

J. MICHAEL KERR, )

 )

 Defendants-Appellees )

JUDGMENT

This appe al came on to be heard upon the record from the

Chancery Court of Johnson County, and briefs filed on behalf of the

respective parties. Upon consideration thereof, this Court is of

opinion that there was no reversible error in the trial court.

W e affirm the judgment of the tr ial court. Costs of this

appeal are assessed against the appellant and this case is remanded

to the trial court.

PER CURIAM