IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 26, 2013

DISCOVER BANK ISSUER OF DISCOVER CARD 

v. LAYTON HOWELL, III

Appeal from the Circuit Court for Maury County

No. 14104 Stella L Hargrove, Judge

No. M2013-00485-COA-R3-CV - Filed November 8, 2013

Plaintiff filed a Complaint on Sworn Account, pursuant to Tennessee Code Annotated § 24-

5-107, for unpaid credit card charges against the credit card holder. Plaintiff subsequently

filed a motion for summary judgment that was accompanied by a statement of the material

facts as to which Plaintiff contended there was no genuine issue for trial, and each fact was

set forth in a separate, numbered paragraph as the rule required, with a specific citation to

the record. Defendant filed a response objecting to the motion; however, Defendant failed

to demonstrate that the facts Plaintiff relied upon in making the motion for summary

judgment were, in fact, disputed as required by Tennessee Rule of Civil Procedure 56.03. As

a consequence, the facts relied upon by Plaintiff were undisputed and the trial court

determined that Plaintiff was entitled to judgment for the amount owed. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT, JR., J., delivered the opinion of the Court, in which ANDY D. BENNETT

and RICHARD H. DINKINS, J.J., joined.

Geoffrey Coston, Franklin, Tennessee, for the appellant, Layton Howell, III.

Charlotte L. Rhodes and J. Bart Lloyd, Birmingham, Alabama, for the appellee, Discover

Bank, Issuer of Discover Card.

OPINION

The defendant, Layton Howell, III, was issued a credit card account by Discover

Bank, Issuer of Discover Card (“Plaintiff”). As with all credit cards, it was issued for
purposes of extending credit to Howell to purchase goods and services or to obtain cash

advances.

The Cardmember Agreement accompanied the issuance and delivery of the card. The

agreement, under the heading “Using Your Account,” expressly stated that “the use of your

Account or a Card by you or an Authorized User, or your failure to cancel your account

within 30 days after receiving a Card, means you accept this Agreement. . . .” Use of the

credit card account was contingent upon assent to the terms and conditions of the cardholder

agreement and Howell did use, or authorized the use of the credit card account by others, to

purchase goods and services or cash advances.

Thereafter, Plaintiff provided to Howell monthly statements which described amounts

due as a result of the use of the credit card and a corresponding request for payment.

Significantly, Howell initially made monthly payments to Plaintiff for amounts due on the

card, as requested by the monthly statements and according to the terms of the credit card

agreement.

As time passed, Howell subsequently failed to make timely payments. As a result, the

account went into default. Although the Cardmember Agreement states under “Your Billing

Rights” that any disputes the customer has should be made in writing no later than 60 days

after the bill is sent; Howell did not submit any written disputes to Plaintiff concerning the

monthly statements submitted to him.

Howell has not made a payment since June 4, 2009, rendering the account past due

and Howell in default of the terms of the cardholder agreement. The sworn statement of

account reveals an unpaid principal balance of $7,378.42 is owing.

On December 2, 2011, Plaintiff filed a Complaint against Howell to recover the

indebtedness owing on the credit card account. Acting pro se, Howell filed an answer and

sworn denial of the account on January 6, 2011; he denied all allegations in the Complaint

in a sworn denial stating: “I Layton N. Howell III deny this is my debt and if it is my debt,

I deny that it is a valid debt and if it is a valid debt, I deny the amount sued for is the correct

amount.”

Thereafter, Howell filed motions including the following: Motion to Strike Plaintiff

Affidavit, Motion to Dismiss for failure to Comply with Rule 6, Motion to Dismiss and

Motion for Plaintiff to Comply with “Indiana” Trial Rule 25. Plaintiff filed a timely response

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in opposition to each motion. The trial court heard the motions on February 24, 2012, and

entered an order denying the motions on March 13, 2012.

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Plaintiff subsequently filed a Motion for Summary Judgment, Plaintiff’s Statement

of Undisputed Facts, Supporting Affidavit of Natasha Szczygiel, Attorney Placement

Manager for DB Servicing Corporation, the servicing agent for Discover Bank, and the

written application through which Howell applied for the Discover Card, Howell’s Credit

Card Account Statements and the Cardmember Agreement between Howell and Plaintiff.

The Motion for Summary Judgment was set to be heard on August 24, 2012. A date for the

trial, if one was necessary, was set for September 28, 2012.

Howell did not timely file a proper response to Plaintiff’s Motion for Summary

Judgment. On August 24, 2012, the day of the hearing, Plaintiff’s attorney was informed by

the trial court that Howell provided a “response” the day prior to the hearing, but the original

was not filed with the clerk’s office and a copy was not received by Plaintiff’s attorney until

after the hearing. Nevertheless, Howell’s response to Plaintiff’s Motion for Summary

Judgment did not comply with Tennessee Rule of Civil Procedure 56.03.

At the hearing on the motion, Howell requested a continuance. The trial court granted

a continuance but the court ordered that Howell would not be allowed to file any additional

documents in response to the motion for summary judgment. The hearing date for the motion

was reset for September 28, 2012; the trial, which had been set for that day, was continued

pending the outcome of the motion.

Howell filed another Response to Plaintiff’s Motion for Summary Judgment on

September 14, 2012; this response wasfiled by Howell’s attorney, Geoffrey Coston, who had

just been retained. The response was supported by an affidavit by Howell. One week later,

Plaintiff filed a Motion to Strike Howell’s Response based on the previous order that

prohibited Howell from filing any additional responses to the Motion and upon Howell’s

failure to timely file his response and the response not complying with Tennessee Rule of

Civil Procedure 56.03. Plaintiff’s motion to strike was set to be heard on September 28,

2012. The parties appeared for the hearing but, by agreement, all matters were reset for

hearing on December 6, 2012.

After hearing oral arguments from both parties on December 6, 2012, the court took

the matter under advisement. In a Memorandum issued on December 11, 2012, the trial court

granted Plaintiff’s Motion to Strike Howell’s Response to Motion for Summary Judgment

During the course of the proceedings, the trial court encouraged Howell to obtain an attorney, or at least to

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consult with one, and granted a continuance for Howell to do just that.

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and granted Plaintiff’s Motion for Summary Judgment. An Order, entered on January 10,

2013, incorporated the trial court’s Memorandum and awarding judgment in favor of

Plaintiff and against Howell for the amount sought in the Complaint.

Thereafter, Howell filed a timely notice of appeal.

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ANALYSIS

Tennessee Rule of Civil Procedure 56.01 permits a party seeking to recover upon a

claim to move, with or without supporting affidavits, for a summary judgment in the party’s

favor upon all or any part thereof. Further, Tennessee Rules of Civil Procedure 56.03

provides:

In order to assist the Court in ascertaining whether there are any material facts

in dispute, any motion for summary judgment made pursuant to Rule 56 of the

Tennessee Rules of Civil Procedure shall be accompanied by a separate

concise statement of the material facts as to which the moving party contends

there is no genuine issue for trial. Each fact shall be set forth in a separate,

numbered paragraph. Each fact shall be supported by a specific citation to the

record.

Any party opposing the motion for summary judgment must, not later than five

days before the hearing, serve and file a response to each fact set forth by the

movant either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact

is undisputed for purposes of ruling on the motion for summary judgment only,

or (iii) demonstrating that the fact is disputed. Each disputed fact must be

supported by specific citation to the record. Such response shall be filed with

the papers in opposition to the motion for summary judgment.

In addition, the non-movant’s response may contain a concise statement of any

additional facts that the non-movant contends are material and as to which the

non-movant contends there exists a genuine issue to be tried. Each such

disputed fact shall be set forth in a separate, numbered paragraph with specific

citations to the record supporting the contention that such fact is in dispute.

Howell did not identify any issues in his brief. Upon reading his brief it is apparent that he is challenging the

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grant of Plaintiff’s motion for summary judgment and the award of a judgment of $7,378.42.

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If the non-moving party has asserted additional facts, the moving party shall

be allowed to respond to these additional facts by filing a reply statement in the

same manner and form as specified above.

(Emphasis added).

In this case, Plaintiff was the moving party and Howell was the non-moving party.

Plaintiff filed a motion that was accompanied by a separate concise statement of the material

facts as to which Plaintiff contended there was no genuine issue for trial, and each fact was

set forth in a separate, numbered paragraph as the rule required, with a specific citation to

the record. Howell, as the non-moving party, had the option to either agree that each fact

was undisputed or demonstrate that some or all of the facts were disputed. As the rule

expressly mandates, if Howell elected to dispute any fact, then each fact he disputed had to

be supported by specific citation to the record, meaning a specific citation to an affidavit or

deposition testimony of a witness in the record.

By opposing the motion for summary judgment, Howell had the affirmative duty to

file a response to each fact set forth by Plaintiff; however, Howell failed to dispute any fact

set forth by Plaintiff. Admittedly Howell filed a response to the motion for summary

judgment stating his opposition to the motion, yet, he failed to demonstrate that the facts

Plaintiff relied upon in making the motion for summary judgment were, in fact, disputed.

When a motion for summary judgment is properly supported, “the adverse party may not rest

upon the mere allegations or denials of the adverse party’s pleading, but his or her response,

by affidavits or otherwise provided in this rule, must set forth specific facts showing that

there is a genuine issue for trial. [Failing to do so], summary judgment, if appropriate, shall

be entered against the adverse party.” Tenn. R. Civ P. 56.06.

“It is well-settled that, when a non-moving party fails to respond to the moving party’s

statement of undisputed facts, the court may consider the facts admitted.” Cardiac Anesthesia

Servs., PLLC v. Jones, 385 S.W.3d 530, 539-40 (Tenn. Ct. App. 2012) (citing Holland v. City

of Memphis, 125 S.W.3d 425, 428–29 (Tenn. Ct. App. 2003)). Thus, due to Howell’s failure

to demonstrate that any of the facts in Plaintiff’s statement of undisputed facts were disputed,

as required by the rule, all of the facts set forth by Plaintiff are undisputed.

Because the material facts are undisputed, the issue for this court to consider is

whether Plaintiff was entitled to summary judgment as a matter of law.

Plaintiff’s Motion for Summary Judgment was supported by the affidavit of Natasha

Szczygiel, Plaintiff’s record keeper, pursuant to Tennessee Rule of Evidence 902(11) and

803(6). By her affidavit, Plaintiff set forth as fact, which is now undisputed, the Cardmember

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Agreement, the written application, evidence of the monthly billing statements, each of

which bore the name Layton N. Howell, III, the billing statements were mailed to Howell at

his address of record, that, as time passed, Howell failed to remit payments, that he did not

submit any writing to dispute the monthly statements, and that a balance of $7,378.42 was

owing.

We have determined that the motion for summary judgment and evidence relied upon

by Plaintiff complied with the requirements of Tennessee Rules of Civil Procedure 56.06 and

Tennessee Rules of Evidence 902(11) and 803(6). We have also determined that Howell’s

failure to properly respond in a timely manner to Plaintiff’s Motion for Summary Judgment,

and his failure to present competent and specific evidence to establish a genuine issue of

material fact, the facts are assumed correct and undisputed, and the undisputed facts

demonstrate that Plaintiff is entitled to judgment as a matter of law and is entitled to the

monetary judgment rendered by the trial court.

IN CONCLUSION

The judgment of the trial court is affirmed and this matter is remanded with costs of

appeal assessed against Appellant, Layton N. Howell, III.

_________________________________

FRANK G. CLEMENT, JR., JUDGE

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