                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                          Assigned on Briefs November 29, 2007

           MBNA AMERICA BANK, N.A. v. CHARLES HENDRICKS

                    Appeal from the Chancery Court for Cheatham County
                             No. 12143  Robert E. Burch, Judge



                   No. M2007-00583-COA-R3-CV - Filed February 14, 2008


Bank filed suit to enforce an arbitration award for a debt owed by a former credit card holder. The
trial court granted summary judgment against the debtor, who appeals based on alleged procedural
improprieties. We affirm.

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

ANDY D. BENNETT, J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P.J., M.S.,
and FRANK G. CLEMENT, JR.,J., joined.

Charles M. Hendricks, Pleasant View, Tennessee, Pro Se.

Christine Bratten, Knoxville, Tennessee, for the appellee, MBNA America Bank, N.A.

                                             OPINION

        This is a suit to enforce an arbitration award concerning a credit card debt. Charles
Hendricks, the credit card holder, accumulated over $18,000.00 in debt on a MasterCard account
issued by MBNA America Bank, N.A. (“MBNA”) and failed to make monthly payments to keep the
account current. In response to MBNA’s attempts to obtain payment, Mr. Hendricks sent MBNA
a check for $20.00 in September 2003 along with a “Contract of Novation” providing that MBNA’s
cashing of the check would constitute acceptance of the conditions of the contract of
novation–namely that “any and all implied or actual contractual obligations and any and all alleged
debt obligations” of Mr. Hendricks regarding the MasterCard account to MBNA were “herein
discharged and fully satisfied.” MBNA deposited the check.

        The credit card agreement provided that disputes were to be submitted to arbitration by the
National Arbitration Forum (“NAF”). MBNA filed a claim against Mr. Hendricks with the NAF for
the credit card debt plus interest and attorney fees and costs. Mr. Hendricks received notice of the
arbitration claim and submitted a notarized statement to the NAF in November 2003 in which he set
out his position, including his assertion that the debt had been satisfied by the contract of novation.
Based upon the evidence submitted by both parties, the NAF issued an award in favor of MBNA for
a total amount of $22,834.57 on December 31, 2003.

        On June 2, 2004, MBNA filed a petition for confirmation of the arbitration award in the
Chancery Court for Cheatham County. On July 2, 2004, Mr. Hendricks filed a Notice Affidavit in
Response to Civil Complaint denying that there was any valid debt between him and MBNA based
on the contract of novation. On October 6, 2004, Mr. Hendricks filed interrogatories, a request for
production of documents, and a request for admissions as well as a motion to compel responses to
the interrogatories and request for admissions. MBNA responded to the request for admissions.

        After a motion by the court to dismiss for failure to prosecute on October 18, 2006, MBNA
filed a motion for summary judgment with a supporting memorandum and list of undisputed facts.
The plaintiff’s list of undisputed facts includes the following:

                 1. That Defendant had an account with MBNA America Bank, N.A. and
        Defendant made extensive charges on the credit card account.
                 2. That the credit card terms provided for arbitration with National
        Arbitration Forum . . . as evidenced by Exhibit 1.
                 3. That Defendant defaulted on the agreement by not making monthly
        payments nor paying the balance due on the account.
                 4. That the National Arbitration Forum mailed a Notice of Arbitration to the
        Defendant as evidenced by Exhibit 2.
                 5. That Defendant participated in the arbitration proceeding by filing
        responses with the National Arbitration Forum as evidenced by Exhibit 3.
                 6. That an arbitration award was granted in favor of MBNA America Bank,
        N.A. December 31, 2003 as evidenced by Exhibit 4.
                 7. That Defendant received a copy of the arbitration award as evidenced by
        the letter attached as Exhibit 5 that he forwarded to the National Arbitration Forum
        on October 6, 2004.


         On December 29, 2006, Mr. Hendricks filed an Answer to Summons and Complaint Jury
Trial Demanded. On January 9, 2007, Mr. Hendricks filed an affidavit detailing telephone
conversations between him and various MBNA employees in December 2006 and January 2007.
The summary judgment motion was heard on January 11, 2007. The chancellor sustained MBNA’s
objection to Mr. Hendricks’ affidavit on hearsay grounds; he granted MBNA’s motion for summary
judgment and awarded the bank judgment against Mr. Hendricks in the requested amount,
$22,794.57. In its order dated February 16, 2007, the court noted that it had considered “Defendant’s
filed response to the Motion for Summary Judgment that did not specifically respond to Plaintiff’s
list of undisputed facts.” Mr. Hendricks appealed and filed a Statement of Evidence.

        On appeal, Mr. Hendricks challenges the trial court’s decision to grant summary judgment
based on a number of alleged improprieties, most of which are not developed in significant detail
in his brief. Mr. Hendricks asserts that the trial court violated his constitutional and statutory rights
“by not providing a fair trial, failing to provide a trial by jury as demanded by Charles Hendricks,

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failing to provide Charles Hendricks a pro se litigant adequate time to prepare a proper defense,
failing to allow Charles Hendricks the opportunity to discover, failing to allow Charles Hendricks
the opportunity to directly question a fact competent witness from the Plaintiff and ruling that the
first hand testimony of Charles Hendricks’ Affidavit concerning material facts in the case filed
previously with the Chancery Court was hearsay and not admissible.”

                                            ANALYSIS

         This case was resolved in the trial court upon summary judgment. Summary judgments do
not enjoy a presumption of correctness on appeal. BellSouth Adver. & Pub. Co. v. Johnson, 100
S.W.3d 202, 205 (Tenn. 2003). This court must make a fresh determination that the requirements
of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50 (Tenn. 1997). We
consider the evidence in the light most favorable to the non-moving party and resolve all inferences
in that party's favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). When reviewing the
evidence, we must determine whether factual disputes exist. If a factual dispute exists, we must
determine whether the fact is material to the claim or defense upon which the summary judgment
is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847
S.W.2d 208, 211 (Tenn. 1993); Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn.
Ct. App. 1998). Pursuant to Tenn. R. Civ. P. 56.04, summary judgment shall be granted “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of any material fact and that the moving party
is entitled to judgment as a matter of law.”

       Before proceeding to address the pertinent issues raised, we note that Mr. Hendricks is
representing himself in this matter. We are, therefore, mindful of the principles set out by this court
in MBNA America Bank, N.A. v. Baker, No. M2004-02239-COA-R3-CV, 2007 WL 3443600 at *3
(Tenn. Ct. App. November 15, 2007), including the following:

               Parties who decide to represent themselves are entitled to fair and equal
       treatment by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn.
       Ct. App. 2000); Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 396
       (Tenn. Ct. App. 1997). The courts should take into account that many pro se litigants
       have no legal training and little familiarity with the judicial system. Irvin v. City of
       Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). However, the courts must
       also be mindful of the boundary between fairness to a pro se litigant and unfairness
       to the pro se litigant’s adversary. Thus, the courts must not excuse pro se litigants
       from complying with the same substantive and procedural rules that represented
       parties are expected to observe. Edmundson v. Pratt, 945 S.W.2d 754, 755 (Tenn.
       Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n. 4 (Tenn. Ct. App. 1995).

In evaluating this case, we will give “due deference” to Mr. Hendricks’ pro se status. Id. at *3.

                                         Right to Jury Trial



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        Mr. Hendricks argues that the trial court erred in denying him a trial by jury pursuant to
Article I, Section 6 of the Tennessee Constitution. This argument is without merit.

        The trial court decided this case under Tenn. R. Civ. P. 56, which allows the court to enter
judgment where there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. It has been held that the entry of summary judgment does not
improperly deny the right to trial by jury where there are no genuine issues of material fact. Union
Planters Nat. Bank of Memphis v. Inman, 588 S.W.2d 757, 760 (Tenn. Ct. App. 1979); State v.
Malady, 952 S.W.2d 440, 443 (Tenn. Ct. App. 1996). Moreover, this is an action to enforce an
arbitration decision. As set out below, the court’s role in such proceedings is very limited, and there
are no relevant factual issues for a jury to decide.

                                        Summary Judgment

       Mr. Hendricks objects to the trial court’s granting of summary judgment on several grounds,
none of which we find to have merit.

        By using his MBNA credit card, Mr. Hendricks bound himself by the terms set forth in the
credit card agreement, including the use of NAF arbitration. See MBNA America, N.A. v. Darocha,
No. E2006-02000-COA-R3-CV, 2007 WL 2323399 (Tenn. Ct. App. August 15, 2007). Tenn. Code
Ann. § 29-5-313(b), part of the Uniform Arbitration Act, provides that an application to vacate an
arbitration award “shall be made within ninety (90) days after delivery of a copy of the award to the
applicant,” except where predicated on “corruption, fraud, or other undue means.” It is undisputed
that Mr. Hendricks received a copy of the arbitration award issued on December 31, 2003. There
is no evidence that Mr. Hendricks made an application to vacate the arbitration award or objected
to the award within 90 days of delivery of the award to him. Tenn. Code Ann. § 29-5-312 provides
that “the court shall confirm an award, unless, within the time limits hereinafter imposed, grounds
are urged for vacating or modifying or correcting the award . . . .”

        Even if Mr. Hendricks had made a timely request to vacate or modify the arbitration award,
a trial court’s ability to correct an arbitration award is “severely limited” under the applicable
provisions of the Uniform Arbitration Act, Tenn. Code Ann. §§ 29-5-313(a) and 29-5-314(a).
Millsaps v. Robertson-Vaughn Construction Co., Inc., 970 S.W.2d 477, 480 (Tenn. Ct. App. 1997).
Thus, in Arnold v. Morgan Keegan & Co., Inc., 914 S.W.2d 445, 449 (Tenn. 1996), the court stated:
“As long as the arbitrator is, arguably, construing or applying the contract and acting within the
scope of his authority, the fact that a court is convinced he committed serious error does not suffice
to overturn his decision.”

        Based upon the undisputed facts, the trial court properly granted MBNA’s motion for
summary judgment. The time for Mr. Hendricks to raise his objections to the underlying debt was
during the arbitration process or by asking the court to vacate the arbitration award within 90 days
of delivery to him pursuant to Tenn. Code Ann. § 29-5-313(b). Moreover, the trial court’s ability
to review arbitration awards is quite limited.



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        According to Mr. Hendricks’ statement of evidence, the trial court sustained MBNA’s
hearsay objection to the affidavit he submitted in response to the bank’s motion for summary
judgment. The affidavit includes statements allegedly made by MBNA employees to Mr. Hendricks
in telephone conversations, which fit the definition of hearsay found in Tenn. R. Evid. 801(c).1
Therefore, we see no error in the court’s hearsay ruling. Moreover, as stated by the trial court in its
order, Mr. Hendricks’ affidavit does not address itself to the bank’s list of undisputed facts. Again,
as discussed above, challenges to the arbitration award were to be made within 90 days of delivery
of the award to Mr. Hendricks. The trial court was presented with no genuine issues of material fact
and properly granted judgment as a matter of law.2


                                      Discovery/Motion for Continuance

       Mr. Hendricks’ brief also includes cursory arguments that the trial court erred in not allowing
him to obtain discovery and to interrogate witnesses and in denying his motion for a continuance at
the summary judgment hearing. We find no merits to these arguments.

        As discussed above, MBNA’s action was to enforce an arbitration award, and the provisions
of the Uniform Arbitration Act set out the rules regarding objecting to such an award. Mr. Hendricks
failed to raise any objections within the statutory time frame. The time for seeking information or
examining witnesses about the credit card debt had passed by the time MBNA filed its action in
chancery court. Moreover, Mr. Hendricks’ discovery requests were filed in October 2004, but he
never filed a proper motion to compel MBNA’s response to the requests for interrogatories and for
production of documents.3 Filing a motion to compel contemporaneously with the discovery
requests is not proper under the Tennessee Rules of Civil Procedure. See Connatser v. Connatser,
No. 03A01-9801-CV-00005, 1998 WL 340439 at *4 (Tenn. Ct. App. June 29, 1998). There is no
indication in Mr. Hendricks’ statement of the evidence that he requested that the trial court compel
MBNA’s discovery responses.

        As to the trial court’s denial of Mr. Hendricks’ motion for continuance, “[a]n appellate court
cannot interfere with the trial court’s decision [on a motion for continuance] unless such decision
constitutes an abuse of discretion and causes prejudice to the party seeking the stay or continuance.”
Sanjines v. Ortwein & Assocs., P.C., 984 S.W.2d 907, 909 (Tenn. 1998). Mr. Hendricks has asserted
no basis for finding that the trial court “applie[d] an incorrect legal standard or reache[d] a decision
which is against logic or reasoning and which causes an injustice to the complaining party.” Doe



         1
          Rule 801(c) of the Tennessee Rules of Evidence defines hearsay as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
         2
           We also note that, even if the point asserted in Mr. Hendricks’ affidavit–that MBNA’s debt had been sold to
another entity–is assumed to be true, it appears to be irrelevant. The credit card agreement specifically provides that
the arbitration provisions shall survive a number of eventualities, including “sale of the debt by us [MBNA].”
         3
             The record shows that MBNA answered Mr. Hendricks’ request for admissions.

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1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 42 (Tenn. 2005). We find
no abuse of discretion here.

       The trial court’s grant of summary judgment is affirmed.

       Costs of appeal are assessed against the appellant, for which execution may issue of
necessary.


                                                    ___________________________________
                                                    ANDY D. BENNETT, JUDGE




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