The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 21, 2011 Session
AMERICAN EXPRESS BANK, FSB v. MICHAEL FITZGIBBONS
Appeal from the Circuit Court for Sevier County
No. 2010-0106-IV O. Duane Slone, Judge
No. E2010-02298-COA-R3-CV-FILED-OCTOBER 24, 2011
American Express Bank, FSB, sued Michael Fitzgibbons on a sworn account for unpaid
credit card debt. It later sought summary judgment. Following a hearing, the trial court
granted the motion and entered a judgment against Fitzgibbons for $25,766.70 plus attorney’s
fees and costs. Fitzgibbons appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded.
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Michael Fitzgibbons, Sevierville, Tennessee, appellant, pro se.
Michelle S. Moghadom, Brentwood, Tennessee, for the appellee, American Express Bank,
FSB.
OPINION
I.
In February 2010, American Express filed a complaint on a sworn account in which
it alleged that Fitzgibbons had defaulted on payments owed on a credit card account that had
been opened for him. The complaint alleged that Fitzgibbons refused to pay the balance of
the debt owed, i.e., $25,766.70, despite demands for payment. In a supporting affidavit, an
employee of American Express stated that the company had extended credit to Fitzgibbons
on an open, unsecured business account ending in number 1008 and that, pursuant to his
cardholder agreement, Fitzgibbons had agreed to repay the debt owed together with interest
and any additional, applicable charges. According to American Express, Fitzgibbons had not
made a payment since May 2009.
On April 23, 2010, Fitzgibbons, proceeding pro se, filed an unsigned answer in which
he denied the substance of the allegations of the complaint. He asserted, without his
signature and, obviously, without an oath, that the complaint failed to name as a defendant
the real party in interest and that he had never entered into any contract or credit agreement
with American Express. He sought dismissal of the complaint.
On April 28, 2010, American Express filed a request for admissions. In part,
Fitzgibbons was asked to admit that he had applied for and obtained the subject credit card
account and that he was indebted to American Express for $25,766.70. Fitzgibbons failed
to file any type of response to this request.
On September 7, 2010, American Express filed a motion for summary judgment. The
motion was supported by documents including a statement of undisputed facts, the affidavit
of its custodian of records, monthly billing statements and the cardholder agreement for the
subject account. Again, Fitzgibbons failed to properly respond to the motion.
The trial court considered the motion on October 8, 2010. At the conclusion of the
hearing, the court granted American Express summary judgment and decreed an award
against Fitzgibbons for the requested amount.
Fitzgibbons timely filed a notice of appeal.
II.
Fitzgibbons presents several issues that we consolidate and restate as follows:
Did the trial court err in granting summary judgment to
American Express based on its finding that the debt sought was
indisputably owed by Fitzgibbons to American Express?
III.
The purpose of summary judgment is to resolve controlling issues of law rather than
to find facts or resolve disputed issues of fact. Bellamy v. Fed. Express Corp., 749 S.W.2d
31, 33 (Tenn. 1988). Summary judgment is appropriate only when the moving party
demonstrates that there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law. See Tenn. R. Civ. P. 56.04; Penley v. Honda Motor Co., 31 S.W.3d 181,
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183 (Tenn. 2000); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). In reviewing the record,
“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.” Staples v. CBL &
Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). “If both the facts and conclusions to be drawn
therefrom permit a reasonable person to reach only one conclusion, then summary judgment
is appropriate.” Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 91 (Tenn.
1999). Because this inquiry involves a pure question of law, the standard of review is de
novo with no presumption of correctness attaching to the trial court's legal conclusion. See
Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000); Carvell v. Bottoms, 900 S.W.2d 23, 26
(Tenn. 1995).
IV.
A.
Fitzgibbons asserts that the trial court erred in holding him liable for a debt that,
according to him, does not belong to him. He summarizes his position as follows:
[American Express] in this case [is] seeking to collect a debt
that is owing by a current, legal, existing corporation. [American
Express] is attempting to make Mr. Fitzgibbons individually and
personally liable for the debt of another entity. The [trial court]
erred in [entering] judgment against Mr. Fitzgibbons by
overlooking the fact that the debt is of a legal corporation.
In granting summary judgment, the trial court found that “there is no genuine issue
of material fact for trial as to the indebtedness owing from [Fitzgibbons] to [American
Express]; and that [American Express] is entitled to judgment as a matter of law. . . .”
Fitzgibbons asserts, without further elaboration, that the account, and thus, the
outstanding debt, belongs to a business called “Cheetah Graphics, Inc.” He acknowledges
that the business defaulted on its obligation to American Express, but contends that he was
“merely an authorized user on behalf of Cheetah Graphics, Inc. of the corporate credit
card,”1 and is not legally responsible for the debt.
1
The record does not indicate the precise relationship between Fitzgibbons and the company other
than to reflect that monthly credit card billing statements and payment coupons were sent to “M.P.
Fitzgibbons” and “Cheetah Graphics, Inc.,” at the same Sevierville address. Further, Fitzgibbons, at oral
argument before this Court, displayed a credit card from American Express imprinted with both the names
of Fitzgibbons and Cheetah Graphics, Inc.
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In response, American Express asserts that summary judgment was properly granted.
More specifically, American Express submits that the pleadings and sworn affidavit of its
authorized representative and numerous procedural errors by Fitzgibbons necessarily leads
to the conclusion that there is no dispute of material fact existing for trial and that the
company is entitled to summary judgment as a matter of law. We examine these assertions
below, mindful that on appeal “we must freshly determine whether the requirements of Tenn.
R. Civ. P. 56 have been met.” Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997)(citing
Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 44-45 (Tenn. App. 1993)).
B.
As we have noted, American Express initiated this action by filing suit on a sworn
account. Tenn. Code Ann. § 24-5-107 (2000) governs such actions. It provides, in relevant
part, as follows:
An account on which action is brought, coming from another
state or another county of this state, or from the county where
suit is brought, with the affidavit of the plaintiff or its agent to
its correctness, . . . and . . . the certificate of a notary public with
such notary public’s official seal annexed thereto, . . . is
conclusive against the party sought to be charged, unless that
party on oath denies the account.
“The reason and policy of this act are said to be to furnish an easy and ready means of
collecting accounts when no real defense exists, unless it shall be denied on oath, and the
plaintiff thereby notified to make proof.” Funk v. Target Nat’l Bank/Target Visa, No.
E2006-02010-COA-R3-CV, 2007 WL 1555843, at *2 (Tenn. Ct. App. E.S., filed May 30,
2007) (citing Foster v. Scott County, 107 Tenn. 693, 65 S.W. 22, 23 (Tenn. 1901)
(discussing a predecessor statute to Section 24-5-107)).
Attached to the complaint in the present case is an affidavit of sworn account by
Jennifer Hartje, custodian of records for American Express, certifying the accuracy of the
accounting of the debt owed by Fitzgibbons. Contrary to the express provisions of the statute
requiring a denial of the charges under oath, Fitzgibbons filed only an unsworn, unsigned
answer generally denying the allegations of the complaint – in effect, under the statute, no
denial at all. Pursuant to the statute, American Express is not required to bring forth further
proof of its claim; the properly authenticated and sworn account, without a proper response
from Fitzgibbons, is conclusive against him. In other words, “[t]he statute is quite clear that
in the absence of a sworn denial the plaintiff is entitled to judgment on the sworn account.”
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State ex rel. Finkelstein, Kern, Steinberg, and Cunningham v. Donald, No.
02A01-9807-CH-00203, 1999 WL 236407 at *4 (Tenn. Ct. App. M.S., filed Apr. 22, 1999).
On April 28, 2010, American Express further pursued its case against Fitzgibbons by
filing requests for admissions. In short, they sought admissions by Fitzgibbons to the effect
that he applied for, obtained, and used the credit card issued by American Express; that he
had ceased making payments; was in default; and was indebted to American Express in the
amount sought. Tenn. R Civ. P. 36 governs requests for admissions. In relevant part, the
Rule provides:
A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the truth
of any matters . . . that relate to (a) facts, the application of law
to fact, or opinions about either; and (b) the genuineness of any
described documents.
Each matter of which an admission is requested shall be
separately set forth. The matter is admitted unless, within 30
days after service of the request, or within such shorter or
longer time as the court may allow, the party to whom the
request is directed serves upon the party requesting the
admission a written answer or objection addressed to the
matter, signed by the party or by the party's attorney, . . . .
(Emphasis added.) Regarding admission requests under Rule 36, this court has observed:
The purpose of admissions is to limit and narrow the issues,
thereby reducing trial time. Tennessee Dept. of Human
Services v. Barbee, 714 S.W.2d 263, 266 (Tenn. 1986). No
proof is needed to establish a fact that has been admitted, and
no evidence should be allowed to refute the admission. Id. at
267. “Unanswered requests for admission are deemed admitted
and the matter requested is conclusively established for the
purposes of the pending case. . . . [A] Rule 36 admission, unless
it is allowed to be withdrawn or amended, concludes the matter
and avoids any need for proof at trial.” Id. at 266.
(Emphasis added.) Hutcheson v. Irving Materials, Inc., No. M2002-03064-COA-R3-CV,
2004 WL 419722 at *3 (Tenn. Ct. App. M.S., filed Mar. 8, 2004).
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In the present case, Fitzgibbons never answered the request to admit. Instead, some
six months later, he submitted his own request for admissions and for production of
documents. Under Rule 36, as a consequence of his failure to answer, each of the requested
admissions is deemed admitted. Most significantly, Fitzgibbons has thereby admitted that
he is indebted to American Express for the amount sought.
In September 2010, American Express moved for summary judgment. Summary
judgment is properly granted “if the pleadings, depositions, answer to interrogatories, and
admissions on file, together with affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to summary judgment as a matter of
law.” Tenn. R. Civ. P. 56.04. In the face of a properly supported motion from the moving
party, “[t]he burden of production then shifts to the nonmoving party to show that a genuine
issue of material fact exists.” Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)).
“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.” Tenn. R. Civ. P.
56.03. In the present case, American Express filed a statement of undisputed facts containing
the same essential facts established by the failure of Fitzgibbons to file a sworn answer to the
complaint and his failure to answer American Express’s requests for admissions: to wit, that
(1) Fitzgibbons was issued a credit card by which American Express extended him credit to
purchase goods and services; (2) Fitzgibbons’ use of the card was based on his assent to the
terms and conditions of the cardholder agreement; (3) Fitzgibbons did use the credit card; (4)
American Express provided Fitzgibbons with monthly statements detailing the charges
Fitzgibbons made and requesting payment in accordance with the cardholder agreement; (5)
Fitzgibbons initially made payments in compliance with the cardholder agreement; (6)
Fitzgibbons failed to make timely payments on the account and is currently in default,
leaving an unpaid principal balance of $25,766.70; and (7) Fitzgibbons failed to dispute any
of the monthly billing statements before American Express initiated the present action to
collect the remaining unpaid charges.
Rule 56 requires that a party opposing a motion for summary judgment “must . . .
serve and file a response to each fact set forth by the movant . . . . Each disputed fact must
be supported by specific citation to the record.” Tenn. R. Civ. P. 56.03. “An adverse party
may not rest upon the mere allegations or denials of the adverse party’s pleading, but his or
her response . . . must set forth specific facts showing that there is a genuine issue for trial.
If the adverse party does not so respond, summary judgment, if appropriate, shall be entered
against the adverse party.” Tenn. R. Civ. P. 56.06.
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Here, Fitzgibbons failed to respond to American Express’s statement of undisputed
material facts. “The material facts set forth in the statement of the moving party may be
deemed admitted in the absence of a statement controverting them by the opposing party.”
Holland v. Memphis, 125 S.W.3d 425, 428 (Tenn. Ct. App. 2003)(perm. app. denied).
“Accordingly, failure to file a response in opposition to a motion for summary judgment
generally will prove fatal in the trial court and upon appeal.” Id. Predictably, this is
precisely the result in the present case.
C.
In light of the defendant’s pro se status, we have painstakingly set out the procedural
history of the present case, with a particular focus on the procedural missteps, at every turn,
by Fitzgibbons. We have done so in an effort to show how and why Fitzgibbons’ failure to
proceed in accordance with the applicable statute and rules governing this case led to the
judgment against him. As we have discussed, American Express established the debt owed
by Fitzgibbons through the pleadings, the billing statements and sworn affidavit of its
custodian of records submitted in support of its summary judgment motion, and admissions
on file. By failing to properly respond, Fitzgibbons failed to refute the evidence relied upon
by American Express and was unable to show that a dispute existed as to any material issue
of fact. Accordingly, American Express is entitled to judgment as a matter of law.
Recently, in a factually similar case, we observed:
While a party who chooses to represent himself or herself is
entitled to the fair and equal treatment of the courts, “[p]ro se
litigants are not ... entitled to shift the burden of litigating their
case to the courts.” Pro se litigants must comply with the same
substantive and procedural law to which represented parties
must adhere.
(Emphasis added.) Phoenix Credit v. Akers, No. M2010-01297-COA-R3-CV, 2011
WL856919 at *2 (Tenn. Ct. App., M.S. filed Mar. 10, 2011) (internal citations omitted).
Based on the foregoing, American Express met its burden of showing that “there is
no genuine issue as to any material fact and [it] is entitled to judgment as a matter of law.”
Tenn. R. Civ. P. 56.04. Accordingly, the trial court did not err in granting summary
judgment to American Express and awarding judgment against Fitzgibbons for the amount
established by the sworn account.
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V.
The judgment of the trial court is affirmed. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of the trial court’s judgment and for collection
of costs assessed below. Costs on appeal are taxed to the appellant, Michael Fitzgibbons.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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