David Jones v. Mortgage Menders, LLC

02/21/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 9, 2018 Session

DAVID JONES v. MORTGAGE MENDERS, LLC, ET AL.

Appeal from the Circuit Court for Davidson County

No. 17C374 Thomas W. Brothers, Judge

No. M2017-01452-COA-R3-CV

This appeal concerns an effort to re-assert causes of action under the Savings Statute. In

July 2006, David Jones (“Plaintiff”) filed an action in the Circuit Court for Davidson

County (“the Trial Court”). On February 12, 2016, Plaintiff took a voluntary non-suit.

On February 2, 2017, Plaintiff filed a purported complaint (“the February 2 Document”)

attempting to re-assert his original claims, which featured his typewritten name rather

than his handwritten signature. Victor Hazelwood and Advantage Title & Escrow, Inc.

(“Defendants”) filed a motion for summary judgment, which the Trial Court granted.

Plaintiff appealed. We hold that Plaintiff’s typewritten name qualified as his signature

and that his filing, while quite deficient as a piece of legal writing, was not so deficient as

to render it not a complaint in the first place. We reverse the judgment of the Trial Court.

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

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which RICHARD H.

DINKINS and W. NEAL MCBRAYER, JJ., joined.

Daniel J. Turklay, Nashville, Tennessee, for the appellant, David Jones.

Todd E. Panther, Nashville, Tennessee, for the appellees, Victor Hazelwood and

Advantage Title & Escrow, Inc.

MEMORANDUM OPINION1

Background

This case was initiated in 2006. Plaintiff was involved in a dispute regarding the

sale of real property, the details of which are not germane to the issues on appeal and

about which the parties spend very little time discussing. On February 12, 2016, the Trial

Court entered an order of voluntary non-suit with respect to that action. In February of

the following year, Plaintiff filed the February 2 Document pro se. This document was

headed “Complaint” and had listed on it the Davidson County Circuit Court docket

number for the suit dismissed on February 12, 2016. The February 2 Document stated

the following:

Motion To Proceed Pro Sa

Plantiff David A. Jones comes by and through his attorney for motion to

proceed pro sa. Also Plantiff David A. Jones files a motion and plea for

permission to proceed with “In Forma Pauperis Status. This court has

jurisdiction over The parties and subject matter arising herein And the

venue is proper.

Facts Of The Case

David A. Jones formerly represented by Atty. James A. Roberts now ask

the court for permission to represent himself until he can find a licensed

Tennessee Attorney. Since The filling of The voluntary nonsuit by attorney

JAMES ROBERTS Mr. Roberts law license has been suspended and he and

Mr. Jones have had other differences as well. Mr. Jones decided to change

attorneys and the other three attorneys that told MR. [J]ones they would

represent him have all declined to Represent him as well.

Wherefore, The Plantiff David A. Jones prays that his motion be granted

for The right to represent Himself until he can find a licensed Tennessee

attorney. Also Mr.Jones ask that THE defendants Mortgage Menders and

Advantage Title and Mortgage be ordered to pay 196000,00 in punitive

damages and 1000000.00 In compensatory damages including all

1

Rule 10 of the Rules of the Court of Appeals provides: “This Court, with the concurrence of all judges

participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum

opinion when a formal opinion would have no precedential value. When a case is decided by

memorandum opinion it shall be designated ‘MEMORANDUM OPINION,’ shall not be published, and

shall not be cited or relied on for any reason in any unrelated case.”

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reasonable attorneys fees and for All other relief which the court deems

equitable and just.

Respctfully submitted

David A.Jones . . . .

(Mistakes in Original). On February 7, 2017, the Trial Court clerk sent Plaintiff a

letter drawing attention to alleged deficiencies in the February 2 Document. In particular,

the clerk informed Plaintiff that he needed to sign the document. Plaintiff subsequently

signed a certificate of service and, on February 13, re-filed that page by facsimile

transmission. On March 1, 2017, Plaintiff, now represented by counsel, filed an amended

complaint.

In April 2017, Defendants filed a motion for summary judgment. This motion was

heard by the Trial Court in May 2017. In June 2017, the Trial Court entered its final

order in which it granted Defendants’ motion for summary judgment. The Trial Court

stated, in relevant part:

The Court finds that the February 13 Pleading is not a complaint

under Rules 3 and 8.01. The February 13 Pleading does not include any

allegations of fact to articulate a claim for relief against the defendants . . . .

***

The Court also concludes that the February 13 Pleading did not

commence an action because it lacks a signature pursuant to Tenn. R. Civ.

P. 11.01. Rule 11.01 requires every pleading to be signed by one attorney

of record or, if the party is not represented by an attorney, the pleading shall

be signed by the party. Rule 11.01 also provides that “an unsigned paper

shall be stricken unless omission of the signature is corrected promptly

after being called to the attention of the attorney or party.” In this case, the

Clerk expressly notified Jones that the February 2 Pleading was deficient

for lack of a signature, yet Jones did not sign the February 13 Pleading.

While Jones signed the certificate of service on the February 13

Pleading, the Court concludes that Jones’s signature on the certificate of

service cannot serve as Jones’s signature on the pleading itself. The Court

also concludes that Jones’s typed name on the February 13 Pleading does

not satisfy the signature requirement under Rule 11. The absence of a

manual signature on the February 13 Pleading flies in the face of the

requirements of Rule 11. Without a manual signature on the pleading,

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Jones could avoid responsibility for the allegations in the February 13

Pleading that Rule 11 is designed to ensure. For example, with no more

than a signed certificate of service and a typed name on the February 13

Pleading, Jones could avoid Rule 11 sanctions by claiming he never signed

the pleading itself. Because the February 13 Pleading was not signed, it

was a nullity. Therefore, the February 13 Pleading did not commence an

action. The first pleading to commence an action in this case was the

March 1 Pleading.

Plaintiff timely appealed to this Court.

Discussion

We consolidate Plaintiff’s issues into one dispositive issue: whether the Trial

Court erred in dismissing Plaintiff’s complaint on the basis that it lacked a handwritten

signature and, indeed, that it was not a complaint at all. The Trial Court’s dismissal,

therefore, was based on the applicable statutes of limitation and was not a dismissal for

failure to state a claim.

This case was resolved by means of summary judgment. As our Supreme Court

has instructed regarding appellate review of a trial court’s ruling on a motion for

summary judgment:

Summary judgment is appropriate when “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 a judgment as a matter of law.”

Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for

summary judgment de novo, without a presumption of correctness. Bain v.

Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist

Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing

so, we make a fresh determination of whether the requirements of Rule 56

of the Tennessee Rules of Civil Procedure have been satisfied. Estate of

Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.

Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

***

[I]n Tennessee, as in the federal system, when the moving party does not

bear the burden of proof at trial, the moving party may satisfy its burden of

production either (1) by affirmatively negating an essential element of the

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nonmoving party’s claim or (2) by demonstrating that the nonmoving

party’s evidence at the summary judgment stage is insufficient to establish

the nonmoving party’s claim or defense. We reiterate that a moving party

seeking summary judgment by attacking the nonmoving party’s evidence

must do more than make a conclusory assertion that summary judgment is

appropriate on this basis. Rather, Tennessee Rule 56.03 requires the

moving party to support its motion with “a separate concise statement of

material facts as to which the moving party contends there is no genuine

issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a

separate, numbered paragraph and supported by a specific citation to the

record.” Id. When such a motion is made, any party opposing summary

judgment must file a response to each fact set forth by the movant in the

manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary

judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”

to survive summary judgment, the nonmoving party “may not rest upon the

mere allegations or denials of [its] pleading,” but must respond, and by

affidavits or one of the other means provided in Tennessee Rule 56, “set

forth specific facts” at the summary judgment stage “showing that there is a

genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party

“must do more than simply show that there is some metaphysical doubt as

to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.

Ct. 1348. The nonmoving party must demonstrate the existence of specific

facts in the record which could lead a rational trier of fact to find in favor of

the nonmoving party. If a summary judgment motion is filed before

adequate time for discovery has been provided, the nonmoving party may

seek a continuance to engage in additional discovery as provided in

Tennessee Rule 56.07. However, after adequate time for discovery has

been provided, summary judgment should be granted if the nonmoving

party’s evidence at the summary judgment stage is insufficient to establish

the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.

56.04, 56.06. The focus is on the evidence the nonmoving party comes

forward with at the summary judgment stage, not on hypothetical evidence

that theoretically could be adduced, despite the passage of discovery

deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.

2015).

Tenn. R. Civ. P. 11.01(a) states regarding the signature requirement as follows:

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Every pleading, written motion, and other paper shall be signed by at least

one attorney of record in the attorney’s individual name, or, if the party is

not represented by an attorney, shall be signed by the party. Each paper

shall state the signer’s address and telephone number, and Tennessee Board

of Professional Responsibility number, if any. Except when otherwise

specifically provided by rule or statute, pleadings need not be verified or

accompanied by affidavit. An unsigned paper shall be stricken unless

omission of the signature is corrected promptly after being called to the

attention of the attorney or party.

In the present case, Plaintiff did not sign the February 2 Document by hand.

However, the February 2 Document did not include a blank signature line. Plaintiff’s

typed name was situated in such a way and location as being where a handwritten

signature would be placed. This is not a situation involving a blank signature line with a

plaintiff’s name or his attorney’s name typed under the blank signature line. In our

judgment, Plaintiff’s typewritten name clearly was meant by him to constitute his

signature, and qualified as such. Respectfully, we disagree with the Trial Court’s

concerns as to Plaintiff’s Rule 11 responsibilities. As his typed name qualifies as his

signature, Rule 11 applies to him the same as if his signature was handwritten.

With respect to whether the February 2 Document even was a complaint, we hold

that it was. Defendants’ position as adopted by the Trial Court would mean essentially

that every complaint dismissed for failure to state a claim never was a complaint in the

first place. We do not believe that our Rules of Civil Procedure either intend or even

contemplate that outcome. Plaintiff’s February 2 Document clearly is deficient as a piece

of legal writing. However, the February 2 Document referenced the original action and

case number. Defendants were put on notice as to what Plaintiff was trying, however

inartfully, to do. For these reasons, the February 2 Document was a complaint timely

filed under the savings statute.2

We take no position on the merits of Plaintiff’s claims. We hold only that the

Trial Court erred in dismissing Plaintiff’s action on the erroneous basis that it neither was

signed nor even was a complaint at all. We reverse the judgment of the Trial Court

granting summary judgment to Defendants, and remand for this case to proceed in the

Trial Court.

2

Prior to any motion to dismiss for failure to state a claim being filed, on March 1, 2017, Plaintiff, by

then represented by counsel, filed a much more substantive amended complaint.

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Conclusion

The judgment of the Trial Court is reversed, and this cause is remanded to the

Trial Court for collection of the costs below and for further proceedings consistent with

this Opinion. The costs on appeal are assessed against the Appellees, Victor Hazelwood

and Advantage Title & Escrow, Inc.

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE

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