                 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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