                 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


In this suit for breach of contract, the assignee of a loan agreement alleged that the defendant was
in default of the agreement and requested judgment for monies advanced, plus interest and attorney’s
fees. The defendant denied owing the debt. The trial court found the plaintiff had failed to carry its
burden of proof and dismissed the case. Upon our determination that the evidence does not
preponderate against the finding of the trial court, judgment in favor of the defendant is affirmed.


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

SHARON G. LEE, J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR., J., joined.
D. MICHAEL SWINEY , J., filed a dissenting opinion.

James B. M. Hooper, Chattanooga, Tennessee, for the appellant, C & W Asset Acquisition, LLC,
as assignee of Chrysler First Financial Services Corporation.

Donald H. Oggs, Sweetwater, Tennessee, pro se appellee.


                                             OPINION

                                           I. Background

       Donald H. Oggs and Chrysler First Financial Services Corporation ("Chrysler") entered into
a contract designated "Variable Rate Personaline Credit Agreement" ("the loan agreement"),
pursuant to which Mr. Oggs was allowed a $5,000 line of credit and the right to advances of funds
from Chrylser and in return, agreed to repay all advances made, along with specified finance charges.
The agreement further provided that Mr. Oggs' failure to make any minimum payment when due
would constitute a default of the agreement, authorizing Chrysler to demand payment of all monies
due under the agreement along with accrued finance charges and reasonable attorney's fees. Later,
this loan agreement was sold and assigned, first to NationsCredit Consumer Corporation, then to the
Cadle Company, and finally, to the appellant, C & W Asset Acquisition, LLC ("C & W").

       In October of 2004, C & W sued Mr. Oggs in the Circuit Court for Monroe County averring
that Mr. Oggs had failed to repay funds advanced to him under the loan agreement and that as of
September 21, 2004, he was indebted to C & W in the amount of $2,981.09. The complaint sought
judgment against Mr. Oggs in that amount, plus prejudgment interest and attorney's fees.

      On November 1, 2004, Mr. Oggs, representing himself, filed an answer to C & W’s
complaint, denying that he owed the debt and stating that he had “no knowledge of the same.”

        Thereafter, C & W filed a request for admissions that called upon Mr. Oggs to admit certain
factual matters. When Mr. Oggs did not file a response within thirty days of the date of service, C
& W filed a motion for an order deeming the matters admitted pursuant to Tenn. R. Civ. P. 36. The
trial court denied this motion and permitted Mr. Oggs to respond in court to the request for
admissions.

       After hearing proof in the case on April 7, 2006, the trial court entered an order in favor of
Mr. Oggs. C & W filed a timely notice of appeal and a Tenn. R. App. P. 24(c)1 statement of the
evidence. The statement of the evidence was served on Mr. Oggs, but he did not file any objections.
The statement of the evidence was not approved by the trial court, but was deemed approved
pursuant to Tenn R. App. P. 24(f)2.

                                                        II. Issues

         In this appeal, we review the following issues:

        1) Does the evidence preponderate against the trial court’s decision that C & W failed to
carry its burden of proof?

       2) Did the trial court err in not deeming admitted the averments in C & W's complaint
because they were not denied by Mr. Oggs in his answer?



         1
           Tenn. R. App. P. 24(c) provides in pertinent part that “[i]f no stenographic report, substantially verbatim recital
or transcript of the evidence or proceedings is available, the appellant shall prepare a statement of the evidence or
proceedings from the best available means, including the appellant’s recollection.”

         2
           Tenn. R. App. P. 24(f)provides in pertinent part that “[t]he trial judge shall approve the . . . statement of the
evidence . . . as soon as practicable after the filing thereof or after the expiration of the 15-day period for objections by
 appellee, as the case may be, but in all events within 30 days after the expiration of said period for filing objections.
Otherwise the . . . statement of the evidence . . . shall be deemed to have been approved and shall be so considered by
the appellate court . . . .”

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      3) Did the trial court err in not granting C & W's motion to have its request for admissions
deemed admitted because of Mr. Oggs' failure to timely respond to such request?

        4) Did the trial court err in not declaring that Mr. Oggs waived the affirmative defense of
failure of consideration by not pleading it?

                                     III. Standard of Review

         In a non-jury case such as this one, we review the record de novo with a presumption of
correctness as to the trial court’s determination of facts, and we must honor those findings unless
there is evidence which preponderates to the contrary. Tenn. R. App. P. 13(d); Union Carbide Corp.
v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s conclusions of law are accorded
no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996);
Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).

                                           IV. Analysis

                                 A. Preponderance of Evidence

         The first issue we address is whether the evidence preponderates against the trial court’s
decision that C & W failed to carry its burden of proof. The proof adduced at trial consisted only
of the testimony of a C&W case manager, exhibits to her testimony, and the testimony of Mr. Oggs.
The brief statement of evidence filed by C & W provided in pertinent part as follows:

               On April 7, 2006, a non-jury trial was conducted before the
               Honorable John B. Hagler. After making preliminary statements,
               plaintiff called Ms. Kristi Knisley to the witness box. After first
               being sworn in Ms. Knisley testified that she was the account
               manager for C & W Asset Acquisitions, LLC who was the assignee
               and holder of a personal line of credit agreement between Mr. Oggs
               and Chrysler First Financial Services Corporation.

                                               ...

               Ms. Knisley testified that the books and fee account records showed
               that defendant Donald Oggs had executed a personal line of credit
               agreement with a $5,000.00 credit line limit. The executed credit
               agreement was entered into evidence as Exhibit 1. On September 26,
               1988, an initial $2,500.00 draw was made upon the line of credit.
               Subsequently, Mr. Oggs made several additional draws upon the line
               of credit along with making a series of minimum payments. The line
               of credit balance history which indicated the draws and payment
               history was admitted into evidence as Exhibit 3.


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               Ms. Knisley testified that on or about February 6, 1999 that Donald
               Oggs had made a $180.00 payment on the account. Again on May 1,
               1999, the Cadle Company had received a $270.00 payment from Mr.
               Oggs. Copies of said checks were admitted into evidence as Exhibit
               2. Ms. Knisley noted that both of Mr. Oggs’ personal checks referred
               to the Nations Credit account number. No further payments were
               made by Mr. Oggs, despite repeated requests for payment by plaintiff.

               Ms. Knisley testified that Mr. Oggs was in default of his agreement
               by failing to pay monthly payments as of April 7, 2005, Mr. Oggs
               owed a principal balance of $1,756.33 with accrued interest of
               $1,545.96 for a total of $3,302.27. This amount gives credit for Mr.
               Oggs’ payments and takes into account the variable finance charge
               which fluctuates in relation to the 6-month certificate of deposit rate
               as published in the Federal Reserve Bulletin. Ms. Knisley also
               pointed out that the agreement which Mr. Oggs signed provided for
               the recovery of reasonable attorney fees after default.

               The defendant chose not to ask questions of Ms. Knisley, and
               proceeded to testify on his own behalf. After first being duly sworn
               Mr. Oggs stated that he and his then wife had resided for a number of
               years in South Carolina until they divorced and he moved back to
               East Tennessee where he was from. Mr. Oggs testified that he had no
               recollection of this debt or receiving money from the line of credit,
               and thereby denied owing the plaintiff.

               On cross examination and questioning of the Judge, Mr. Oggs
               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
               (Exhibit 2). He did not know who would have used his line of credit.

               At the conclusion of the testimony Judge Hagler stated that in his
               opinion that he felt that the plaintiff had failed to carry its burden of
               proof. Specifically that court felt that there was no proof before the
               court that Mr. Oggs had received the money from the line of credit.
               According, the Court ordered that this case was to be dismissed for
               this reason.

       In deciding this case, the trial judge was faced with conflicting testimony. C & W’s account
manager, who had no personal knowledge of the draws Mr. Oggs allegedly received and the
payments he allegedly made on the account, testified as to the balance due based on a computer
printout. The computer printout listed a series of twenty-five checks allegedly advanced to Mr. Oggs
and a series of payments he allegedly made over a ten-year period beginning in 1988. C & W’s


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account manager testified to a balance of $3,302.27, as of April 7, 2005, but the computer printout
alleged to be an accurate record of Mr. Oggs’ account is dated November 20, 2003, and shows a
balance of $2,174.84. Although the printout which is the basis of the account manager’s testimony
does not show any customer activity after November 10, 1998, C & W introduced two checks written
by Mr. Oggs as payments on the account dated February 6, 1999, and May 1, 1999, which are not
shown on the printout. Furthermore, C & W failed to introduce any checks it maintains were issued
to Mr. Oggs as draws under the agreement, even though Mr. Oggs had denied the debt and did not
recollect receiving money from the line of credit.

         The testimony of C & W’s account manager was countered by Mr. Oggs’ testimony which,
as set forth in C & W’s own statement of the evidence, was that “he had no recollection of this debt
or of receiving money from the line of credit and thereby denied owing the plaintiff.” (Emphasis
added). The gist of this statement as we construe it is not that Mr. Oggs denied the debt because he
did not recall it, but rather that he denied the debt and did not recall it. This construction is
consistent with Mr. Oggs answer wherein he denied owing the debt and had no knowledge of it. It
is important to note that the “debt” in this case is not a single advance but a series of twenty-five
advances in the form of checks over a ten-year period. We bear in mind that the question before the
trial court was whether Mr. Oggs currently owed the specific amount of $3,302.27, as claimed by
C & W. The specific debt claimed by C & W was not established by the mere fact that Mr. Oggs
had in the past received money and made payments pursuant to the loan agreement. The payments
made by Mr. Oggs were an acknowledgment of debt only to the extent of those payments and are
not properly construed to also be an acknowledgment of the specific debt claimed by C & W. In
other words, it does not follow from the fact that Mr. Oggs repaid debt that he did not deny, that he
also owes separate and additional debt that he does deny. 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. We do not agree that the trial court erred in finding that C & W failed
to carry its burden of proof by introducing witness testimony which was based upon a deficient and
incomplete record and pertained to transactions of which its witness had no personal knowledge.

         The trial judge’s decision necessarily involved making a credibility assessment of these two
witnesses. It was a classic “she said - he said” situation with which trial courts are often faced. The
trial judge believed Mr. Oggs’ testimony to be more credible than the testimony of the account
manager.

       It is well-settled that a trial court’s assessment of witness credibility is entitled to great weight
on appeal because the trial court saw and heard the witness testify. Town of Alamo v. Forcum-James
Co., 327 S.W.2d 47, 49 (Tenn. 1959). As we have further noted, “[t]he trier of fact is free to believe
or disbelieve all or part or none of a witnesses’ testimony, even where the testimony is
uncontradicted or is not directly impeached.” Cornell v. State, 118 S.W.3d 374, 378 (Tenn. Ct. App.
2003), (citing Blackmon v. Estate of Wilson, 709 S.W.2d 596, 603 (Tenn. Ct. App. 1986)). The
weight, faith and credit to be given to a witness' testimony lies with the trial judge in a non-jury case
because the trial judge had an opportunity to observe the manner and demeanor of the witness.
Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App. 1991); Weaver v. Nelms, 750 S.W.2d 158,


                                                    -5-
160 (Tenn. Ct. App. 1987). We give great weight to a trial court's determinations of credibility.
Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997); B & G Constr., Inc. v. Polk, 37
S.W.3d 462, 465 (Tenn. Ct. App. 2000).

        The trial court was in the best position to evaluate the evidence, judge the credibility of the
witnesses, and determine the contested factual issue of whether funds were advanced to Mr. Oggs.
This is because the trial court is “able to observe witnesses as they testify and to assess their
demeanor, which best situates trial judges to evaluate witness credibility.” Harley v. Harrison, No.
M2005-02099-COA-R3-CV, 2006 WL 2644372, at * 3 (Tenn. Ct. App. Sept. 13, 2006) (citing State
v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990)) (other citations omitted). Accordingly, we do “not re-
evaluate a trial judge's assessment of witness credibility absent clear and convincing evidence to the
contrary.” Harley, 2006 WL 2644372, at * 3 (citing Humphrey v. David Witherspoon, Inc., 734
S.W.2d 315, 316 (Tenn. 1987)) (other citations omitted). In this case, we will not second-guess the
trial court’s decision regarding witness credibility, as there is not clear and convincing evidence to
the contrary.

        As the plaintiff, C & W had the burden of proof. The essential elements of a breach of
contract claim, as we noted in ARC LifeMed, Inc., v. AMC-Tennessee, Inc., 183 S.W.3d 1, 26 (Tenn.
Ct. App. 2005) (citing Lifecare Ctrs. of Am., Inc. v. Charles Town Assoc.’s Ltd. Partnership, LPIMC
Inc., 79 F.3d 496, 514 (6th Cir. 1996)), “include (1) the existence of an enforceable contract, (2)
nonperformance amounting to a breach of the contract, and (3) damages caused by the breach of the
contract.” In order to prove nonperformance amounting to a breach of contract, C & W was required
to prove that Mr. Oggs received the money that C & W claims was due and owing. The necessary
implication of the trial court’s finding that Mr. Oggs did not receive the money is that Mr. Oggs had
no obligation under the loan agreement to repay the monies claimed, and his failure to do so did not
amount to a breach of contract. Our review of the record does not persuade us that the evidence
preponderates against this finding.

                        B. Failure to Respond to Request for Admissions

        Next, C & W argues that the trial court erred in failing to deem as admitted those matters set
forth in C & W’s request for admissions because of Mr. Oggs’ failure to respond to such request.
Before the trial, C & W filed a request for admissions that called upon Mr. Oggs to admit the
following:

               Please admit that you executed the variable rate PersonaLine Credit
               Agreement and Disclosure Statements, a copy of which is attached
               hereto as Exhibit A.

               Please admit that the Plaintiff is entitled to enforce the terms of said
               credit agreement.




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               Please admit that I have obtained money by drawing upon said credit
               agreement.

               Please admit that I formerly resided in Columbia, South Carolina.

               Please admit that on May 30, 1998, I notified Plaintiff's predecessor,
               Nations Credit, that I had moved to Sweetwater, Tennessee.

               Please admit that balance history attached as Exhibit B reflects the
               charges and payments made to my credit agreement.

       When Mr. Oggs did not file a response within thirty days of the date of service, C & W filed
a motion for an order deeming that matter admitted pursuant to Tenn. R. Civ. P. 36. The trial court
denied this motion and instead allowed Mr. Oggs to respond in court to the request for admissions.

        In support of its argument that the trial court erred, C & W cites Tenn. R. Civ. P. 36.01,
which provides that a matter included in a request for admissions “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 . . . .” C & W
appears to suggest that the matters in its request for admissions, if deemed admitted, establish its
action for breach of contract. However, we find nothing in those matters set forth in C & W’s
request for admissions which, if held to be admitted by Mr. Oggs, constitute proof that he owes the
$2,981 debt asserted by C & W.

        For purposes of analysis, we will take it that Mr. Oggs admitted that he executed the loan
agreement, that C & W is entitled to enforce the agreement, that Mr. Oggs obtained money under
the agreement, that Mr. Oggs formerly resided in South Carolina, that Mr. Oggs notified C & W’s
predecessor that he had moved to Sweetwater, Tennessee, and that the “balance history attached as
Exhibit B reflects the charges and payments made to [Mr. Oggs’] credit agreement.” None of these
statements constitutes evidence Mr. Oggs breached the loan agreement and owes C & W the debt
claimed. The fact that Mr. Oggs executed an enforceable loan agreement with C & W and that he
has in the past, obtained funds under the agreement did not prove that any debt incurred by him
under the agreement remained unpaid. Obviously, Mr. Oggs’ place of residency is irrelevant to the
question of whether he owes C & W money under the agreement. And finally, the admission that
the charges and payments were made to Mr. Oggs’ account, as set forth in the account balance
history, does not constitute an admission by Mr. Oggs that such charges and payments are an
accurate record of advances he actually received or of payments he made. The statement of evidence
states that at the hearing on C & W’s motion for an order deeming admitted the matters not
responded to in the request, the court permitted C & W “to respond in court to the request for
admissions.” It is unclear whether Mr. Oggs’ response was made during the motion hearing in
January of 2006 or at trial on April 7, 2006. If Mr. Oggs’ responses were made at the hearing in
January, we believe C & W had sufficient time before trial to pursue further discovery if it so desired


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and was not prejudiced by the fact that Mr. Oggs did not respond within the time allotted under Rule
36.01. In any event, we need not determine whether the trial court erred in allowing Mr. Oggs to
respond as it did because the probative value of the matters deemed admitted was inconsequential;
 therefore, any error committed by the trial court in this regard was harmless.

                             C. Failure to Plead Affirmative Defense

        Next, C & W contends that Mr. Oggs waived the issue of failure to receive consideration
from the line of credit because he did not raise that issue prior to trial. C & W notes that failure of
consideration is an affirmative defense that must be pled with specificity as required by Tenn. R. Civ.
P. 8.03. That rule provides in pertinent part as follows:

               In a pleading to a preceding pleading, a party shall set forth
               affirmatively facts in short and plain terms relied upon to constitute
               . . . failure of consideration . . . and any other matter constituting an
               avoidance or affirmative defense.

(Emphasis added).

        C & W maintains that Mr. Oggs’ answer that he had no knowledge of the debt claimed and
did not owe it was insufficient to satisfy the requirements of Rule 8.03 with respect to the affirmative
defense of failure of consideration and as a result, that defense was waived and should not have been
the basis of judgment in his favor. We disagree.

        We note that Mr. Oggs appears before us as a pro se litigant and has been without the
assistance of counsel throughout this case and therefore, we are compelled to apply a somewhat
different standard in reviewing his pleadings than we would had he been represented by an attorney.
Mr. Oggs, as a pro se litigant, is entitled to fair and equal treatment by the courts. We do not excuse
Mr. Oggs, as a pro se litigant, from complying with the same substantive and procedural rules that
represented parties are expected to observe. But we give pro se litigants, such as Mr. Oggs who is
untrained in the law, a certain amount of leeway in drafting their pleadings and briefs. Accordingly,
we measure the papers prepared by pro se litigants using standards that are less stringent than those
applied to papers prepared by lawyers. We seek to give effect to the substance, rather than the form
or terminology, of a pro se litigant’s papers. Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct.
App. 2004).

       Tenn. R. Civ. P. 15.02 allows an issue not raised by the pleadings to be tried by implied
consent, providing in pertinent part as follows:

               When issues not raised by the pleadings are tried by express or
               implied consent of the parties, they shall be treated in all respects as
               if they had been raised in the pleadings. Such amendment of the
               pleadings as may be necessary to cause them to conform to the


                                                  -8-
               evidence and to raise these issues may be made upon motion of any
               party at any time, even after judgment; but failure so to amend does
               not affect the result of the trial of these issues.

         The statement of evidence shows that Ms. Knisley testified that Mr. Oggs received payments
(consideration) under the loan agreement and neglected to repay same. Given Mr. Oggs’ denial of
any knowledge of the debt claimed, we believe C & W should have reasonably known that the issue
of failure of consideration was before the court as a matter of necessity, and we find no prejudice to
C & W as a result of Mr. Oggs’ failure to comply with Rule 8.03. In any event, C & W raised no
objection to the trial court’s decision upon the ground that it was based upon an affirmative defense
not raised in accordance with Rule 8.03, nor did C & W otherwise object to Mr. Oggs’ failure to
comply with that Rule, and it is well-settled that an issue not raised in the trial court will not be
entertained on appeal. In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn. 2001). Accordingly, C
& W’s argument as to this issue has been waived.

                                      D. Deficiency of Answer

        The final issue presented in this case is whether the averments set forth by C & W in its
complaint should be deemed admitted because not denied by Mr. Oggs in his answer. In this regard,
C & W contends that Mr. Oggs’ assertions in his answer that he did not owe the debt and had no
knowledge of it are inadequate to deny the complaint’s averments that Mr. Oggs was in default of
the loan agreement and was indebted to C & W in the amount claimed.

        As has been noted by the Supreme Court of this state, “[a] partial failure to answer fully, as
by omitting answer to particular allegation, should be timely called to the attention of the Trial Court
with request that the alleged fact be considered as admitted. Failure to answer should not be
considered a substitute for evidence when first invoked on appeal.” Smith v. Smith, 643 S.W.2d 320,
323 (Tenn. 1982), citing Edwards v. Edwards, 501 S.W.2d 283 (Tenn. Ct. App. 1973). There is no
indication in the record before us that C & W ever requested that any matters averred in its complaint
be admitted because not adequately addressed in the answer filed by Mr. Oggs. Therefore, we deem
this issue waived and decline to consider the averments specified as evidence against Mr. Oggs.

                                            V. Conclusion

       For the reasons stated herein, we affirm the judgment of the trial court. Costs of appeal are
adjudged against the appellant, C & W Asset Acquisition, LLC.



                                               _________________________________________
                                               SHARON G. LEE, JUDGE




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