C & W ASSET ACQUISITION, LLC, as Assignee of Chrysler First Financial Services Corporation v. Donald H. OGGS

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 7, 2006 Session

C & W ASSET ACQUISITION, LLC, AS ASSIGNEE OF CHRYSLER

FIRST FINANCIAL SERVICES CORPORATION v. DONALD H. OGGS

Appeal from the Circuit Court for Monroe County

No. V04324H John B. Hagler, Jr., Judge

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

D. MICHAEL SWINEY , J., dissenting.

I respectfully dissent from the majority’s opinion. I would reverse the Trial Court and

remand this matter for entry of judgment as requested and as proven by the plaintiff.

Initially, I cannot agree with the majority’s resolution of the issues concerning Mr.

Oggs’ failure to respond to requests for admission and his failure to plead the affirmative defense

of failure of consideration. I believe the Trial Court’s resolution of these issues, as affirmed by the

majority, resulted in Mr. Oggs having an unfair advantage simply because of his status as a pro se

litigant. I believe such a result is contrary to the law of this state.

As recently stated by this Court in a case involving a pro se litigant’s untimely appeal

of a final judgment:

While we realize the “legal naivete” of a pro se litigant such

as Frazier, we must not allow him an unfair advantage because he

represents himself. Irvin v. City of Clarksville, 767 S.W.2d 649,

651-21 (Tenn. Ct. App. 1989). Pro se litigants who invoke the

complex and technical procedures of the courts assume a very heavy

burden. Id. At 652, (citing Gray v. Stillman White Co., 522 A.2d 737,

741 (R.I. 1987)). While they are entitled to fair and equal treatment,

they must follow the same procedures as a represented part. Id.

(citations omitted).

We find it appropriate to include the following observation of

the Eastern Section of this Court, when faced with this same situation

in Grigsby v. Univ. of Tenn. Med. Ctr., No. E2005-01099-COA-R3-

CV, 2006 WL 408053, at *2-3 (Tenn. Ct. App. Feb. 22, 2006). The

Court was forced to dismiss the appeal of a pro se litigant because his

notice of appeal was not timely filed, and stated:

We do not favor dismissing pro se litigants’ appeals

on what might appear to be technicalities. However,

while parties who choose to represent themselves are

entitled to fair and equal treatment, they are not

entitled to shift the burden of litigating their case to

the courts, see Dozier v. Ford Motor Co., 702 F.2d

1189, 1194 (D.C. Cir. 1983), or to be excused from

complying with the same substantive and procedural

requirements that other represented parties must

adhere to. See Irvin v. City of Clarksville, 767 S.W.2d

649, 652 (Tenn. Ct. App. 1988). Accordingly, they

must act within the time periods provided by the

applicable statutes and rules in order to have their

cases considered. See Williams-Guice v. Board of

Educ., 45 F.3d 161, 164 (7th Cir. 1995); Kelley v.

Secretary, United States Dep’t of Labor, 812 F.2d

1378, 1380 (Fed. Cir. 1987).

Id. (citing Goad v. Pasipanodya, No. 01A01-9509-CV-00426, 1997

WL 749462, at *2 (Tenn. Ct. App. Dec. 5, 1997)). Unfortunately Mr.

Frazier’s appeal was not timely filed, and therefore we may not

consider the issues he has presented for our review.

Frazier v. Campbell, No. W2006-00031-COA-R3-CV, 2006 WL 2506706, at *3 (Tenn. Ct. App.

W.S., August 31, 2006), no appl. perm. appeal filed.

First, as to Mr. Oggs’ failure to respond to plaintiff’s properly submitted requests for

admission, I would hold the Trial Court erred by allowing Mr. Oggs never to respond to the requests

for admission. The Trial Court did state that it would allow Mr. Oggs to respond in court, although

it is unclear whether or not this oral response was to be at some hearing before trial or at trial. In

either event, I believe it was error by the Trial Court to proceed this way as the Trial Court, in effect,

simply removed Rule 36 from the Tennessee Rules of Civil Procedure and allowed Mr. Oggs, solely

because he was a pro se litigant, not to have to respond to these properly submitted requests for

admission. If Mr. Oggs was allowed to “respond” orally at some pre-trial hearing where there was

no transcript or written record made, such a “response” was no response at all. If the Trial Court

allowed Mr. Oggs to “respond” to the requests for admission by answering questions put to him on

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cross-examination at trial, that likewise is no “response” to the requests for admission but instead

is nothing more than just that, answering questions on cross-examination at trial. In either event, I

believe the Trial Court erred by giving Mr. Oggs an unfair advantage because he is a pro se litigant

by holding that Rule 36 of the Tennessee Rules of Civil Procedure did not apply to him. There

simply was no reason for Mr. Oggs, solely because of his status as a pro se litigant, “to be excused

from complying with the same substantive and procedural requirements that other represented parties

must adhere to.” Frazier, 2006 WL 2506706, at *3.

Likewise, I do not agree with the majority’s conclusion that Mr. Oggs’ failure to

respond to the requests for admission and the Trial Court’s failure to require him to comply with

Rule 36 was inconsequential and therefore harmless. Frankly, I believe if Mr. Oggs had admitted

even just the last request for admission: “Please admit that balance history attached as Exhibit B

reflects the charges and payments made to my credit agreement”, it most definitely would have been

an admission by Mr. Oggs that such charges and payments were those advances made and payments

received under that credit agreement as that is, despite the majority’s reinterpretation of the language

of the request, exactly what it says.

The Trial Court’s error, and now affirmed by the majority, with regards to Mr. Oggs’

total failure to respond to the requests for admission is then compounded by how the majority

disposes of plaintiff’s argument concerning Mr. Oggs’ failure to plead the affirmative defense of

failure of consideration. Once again, the majority excuses Mr. Oggs from complying with the Rules

of Civil Procedure simply because of his status as a pro se litigant. To take Mr. Oggs’ statement in

his answer that he had no knowledge of the debt claimed and did not owe it, and to some way

transform that into language sufficient to satisfy Rule 8.03 of the Tennessee Rules of Civil Procedure

requiring the affirmative defense of failure of consideration to be plead is a leap too great for any

court to make. Rule 8.03 says that Mr. Oggs “shall set forth affirmatively facts in short and plain

terms relied upon to constitute ... failure of consideration ....” Clearly, Mr. Oggs plead no such facts.

Mr. Oggs never once said in his answer, or even at trial for that matter, that he never received the

money. The most he ever said, even at trial, was that he had no recollection of the debt or receiving

the money, and in his answer the most he claimed was that he had no knowledge of the debt and did

not owe it.

Putting aside for now Mr. Oggs’ trial testimony and looking solely at his answer, I

am completely at a loss as to what the plaintiff was suppose to have done. Applying the majority’s

reasoning, Mr. Oggs, solely because he is a pro se litigant, could in his answer say only that he does

not know about or owe the debt and then be allowed to show up at trial, after first having been

excused from responding to requests for admission, and raise any of the affirmative defenses set

forth in Rule 8.03. Perhaps what Mr. Oggs meant when he said he did not owe the debt was that he

had paid it; perhaps that there was duress; perhaps that estoppel or fraud applied; perhaps that a

statute of limitations or statute of repose applied; perhaps that some other statute such as truth in

lending applied. Under the majority’s decision, plaintiff was required to come to court ready to

address whatever possible or potential non-plead affirmative defenses Mr. Oggs as the pro se

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defendant might for the first time raise during the trial. Such a result totally emasculates Rule 8.03

of the Tennessee Rules of Civil Procedure.

I do not mean to say that a pro se litigant such as Mr. Oggs must use the magic

phrase, “failure of consideration”, or risk failing to comply with Rule 8.03. However, it is not

unreasonable to avoid giving a pro se litigant an unfair advantage to require that litigant to do exactly

what Rule 8.03 says and that is to set forth affirmatively the facts relied upon to constitute whatever

the affirmative defense may be. Here for example, if it was Mr. Oggs’ position as the majority has

found that he never received the money sued for, all he had to plead was “I never got the money.”

Instead, the Trial Court’s ruling as now affirmed by the majority left this plaintiff, as it will every

other similar plaintiff, guessing which of the long list of affirmative defenses contained in Rule 8.03

may be raised for the first time at trial, or apparently even later on appeal, by the pro se defendant

as a defense. To hold, as the majority does, that the plaintiff should have been ready to address

anything raised for the first time at trial by Mr. Oggs does exactly what is prohibited and that is to

put Mr. Oggs, solely because of his status as a pro se litigant, in better shape that he would have been

had he been represented by an attorney.

The majority’s holding allows pro se litigants, solely because they are pro se litigants,

to be excused from answering requests for admission and to be excused from complying with the

Rules of Civil Procedure requiring the pleading of the facts of any affirmative defense. Further, the

majority’s holding then puts the party opposing the pro se litigant in the position of having to guess

what the pro se litigant’s position may be at trial. The majority then says that the litigant represented

by counsel, because of Tenn. R. Civ. P. 15.02, is stuck because some issues and defenses that were

not raised by the pro se litigant in his pleadings were then tried by implied consent.

The record before us shows that the plaintiff here never gave its implied consent to

try these issues and in fact filed a motion concerning Mr. Oggs’ failure to respond to the requests for

admission. Mr. Oggs should have been required to comply with the Rules of Civil Procedure by

responding in writing before trial to the properly submitted Rule 36 requests for admission or they

should have been deemed admitted as provided by Rule 36 itself. Mr. Oggs should have been

required to comply with Rule 8.03 by pleading facts sufficient to put the plaintiff on notice that it

was Mr. Oggs’ defense that he never received the money. As this is not what happened, Mr. Oggs

was given an unfair advantage solely because of his pro se status. The Trial Court erred in excusing

Mr. Oggs from “complying with the same substantive and procedural requirements that other

represented parties must adhere to.” Frazier, 2006 WL 2506706, at *3.

Having expressed my inability to concur with the majority’s decisions as to the issues

concerning Mr. Oggs’ failure to plead failure of consideration and his failure to respond to the

requests for admission and the Trial Court’s error in excusing him from complying with these Rules,

I now turn to the majority’s decision concerning plaintiff’s remaining issue of whether or not the

evidence preponderates against the Trial Court’s decision that plaintiff failed to meet its burden of

proof. I believe a review of that issue can not be made without first addressing, as discussed above,

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the Trial Court’s errors in regard to the requests for admission and Mr. Oggs’ failure to plead failure

of consideration.

I take no issue with the Statement of Evidence as quoted in the majority’s opinion.

I think the evidence shown in that Statement of the Evidence, which, along with the trial exhibits,

is all this Court has before it as to the evidence presented at trial, clearly shows the evidence

preponderates against the Trial Court’s decision that Plaintiff failed to carry its burden.

The majority couches it in terms of the Trial Court being faced with “conflicting

testimony.” Frankly, I believe there was no conflict between plaintiff’s account manager’s and Mr.

Oggs’ testimony. The reason for this is reflected in the Statement of the Evidence itself. Mr. Oggs

never testified that he did not receive the money. Instead, all Mr. Oggs testified to, as set forth in

the Statement of the Evidence, is “that he had no recollection of this debt or receiving money from

the line of credit, and thereby denied owing the plaintiff.” [emphasis added.] In other words, all Mr.

Oggs testified to was that he remembered neither the debt nor getting any money. Mr. Oggs never

testified he did not get the money. Saying that he did not recollect receiving money from the line

of credit is not the same as saying he did not receive money from the line of credit.

This failure of Mr. Oggs to testify that he never got the money but rather only that he

did not recollect either the debt itself or getting money from the line of credit is more that out-

weighed by Mr. Oggs’ concession at trial when he “admitted that it was his signature on the line of

credit agreement (Exhibit 1) and that it appeared to be his signature on the two checks [making

payments on the account for which plaintiff was suing] (Exhibit 2).” As stated in the Statement of

Evidence, Mr. Oggs’ two personal checks made as payments on the account sued on specifically

refer to the “Nations Credit [plaintiff’s undisputed predecessor] account number.” Clearly it is

undisputed from the Statement of Evidence before us that Mr. Oggs made at least two payments by

check on the specific account sued upon by plaintiff, despite his statement that he “had no

recollection of this debt or receiving money from the line of credit....” From the record before us,

it is undisputed that Mr. Oggs received money from the line of credit as he made at least two

payments by check on that specific line of credit. This is so despite Mr. Oggs’ inability to recollect

the debt or recollect receiving money. The fact that he does not remember the debt or remember

receiving money from the line of credit simply does not contradict his concessions at trial, that the

signatures were his, and the documentary evidence showing that he did receive money from this

specific line of credit as he wrote at least two checks making payments on this line of credit.

The majority’s attempt to couch this as a battle of credibility is misplaced. If Mr.

Oggs had testified that he never received any money from this line of credit or that he never entered

into this debt or that he had paid off the line of credit, then it would have been a credibility question.

That is not what happened. The majority makes the statement that “Mr. Oggs did not deny that he

had in the past transacted business pursuant to the loan agreement, but only that he did not owe the

debt currently asserted by C & W.” Respectfully, that is not what Mr. Oggs said or denied. What

Mr. Oggs testified to, as shown in the Statement of Evidence, is that “he had no recollection of this

debt or receiving money from the line of credit....” I see no way short of magic to transform Mr.

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Oggs’ testimony that he had “no recollection of this debt or receiving money from the line of

credit...” into testimony that he admitted in the past having transacted business pursuant to the loan

agreement, including receiving money from the line of credit, but that he had not received the money

currently sued for by plaintiff. That simply is not what he said. He testified only to “no recollection

of this debt or receiving money from the line of credit....” Clearly and without doubt as shown by

his concessions at trial and his two checks making payments on the very account sued on by plaintiff,

Mr. Oggs definitely did receive money from this line of credit even though he has no “recollection”

of having done so.

I disagree with the majority as I do not believe any credibility assessment was

required of the two witnesses. Mr. Oggs’ testimony never was contrary to the evidence presented

by plaintiff, but rather only was that he had no recollection of the debt or receiving money from the

line of credit, even though his concessions at trial and the documentary evidence clearly prove that

he did receive money from this line of credit. All Mr. Oggs testified to was that he did not remember

this debt and did not remember getting money from the line of credit. The fact that he does not

remember the debt or remember getting any money from the line of credit is not inconsistent with

the plaintiff’s proof that Mr. Oggs did sign the line of credit agreement and that Mr. Oggs did receive

the money sued for.

Respectfully, I believe this is a situation where the pro se litigant was unfairly

advantaged, solely because he was a pro se litigant, both at trial and now before this Court. Both the

Trial Court and now the majority in their attempts to insure that Mr. Oggs as a pro se litigant

received “fair and equal treatment” have instead allowed “him an unfair advantage because he

represents himself.” Frazier, 2006 WL 2506706, at *3. I respectfully suggest that the one lesson

to be learned by lawyers and future litigants from the majority’s opinion is that if you find yourself

in a situation similar to Mr. Oggs, do not hire a lawyer but instead proceed pro se so that the Rules

of Civil Procedure will not be applied to you, and that everything you say in that lawsuit will be

construed to mean what it was you might have said as opposed to what you actually did say.

I would reverse the Trial Court and remand this matter for entry of judgment in favor

of plaintiff for the amount sued for as plaintiff met its burden.

___________________________________

D. MICHAEL SWINEY, JUDGE

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