                                                                                               03/26/2020
                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                               Assigned on Briefs January 2, 2020

                     JASON A. BROCK v. FED LOAN SERVICING

                   Appeal from the Chancery Court for Davidson County
                      No. 19-88-IV Russell T. Perkins, Chancellor
                         ___________________________________

                                No. M2019-00722-COA-R3-CV
                            ___________________________________


The trial court dismissed the complaint filed by the pro se appellant for failure to state a
claim and denied his motion to vacate the dismissal. We affirm.

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

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.

Jason A. Brock, Nashville, Tennessee, Pro Se.

Alexander B. Morrison, Brentwood, Tennessee, for the appellee, Fed Loan Servicing.


                                    MEMORANDUM OPINION1

                               I.   FACTS & PROCEDURAL HISTORY

       Jason Brock filed a pro se complaint against Fed Loan Servicing in the chancery
court for Davidson County. The complaint was very brief and consisted of only two
pages. Brock described his claim as one “for violation of the Tennessee Uniform

       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee 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       opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and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.
Electronic Transactions Act, T.C.A. § 47-10-101.”2 Brock asserted that he was “denied
loan discharge for reason of not being in repayment for 10-years.” According to his
complaint, Fed Loan Servicing informed him that he could not receive credit for
payments made prior to the consolidation of his loans. He alleged that Fed Loan
Servicing “forfeited payments towards loan discharge on basis of false certification
within a promissory note containing an unauthorized signature.” Brock claimed that the
“unauthorized signature” was “not valid” and “not in accordance with the Tennessee
Uniform Electronic Transactions Act, T.C.A. § 47-10-101” and “neither is it that of the
plaintiff.” Brock sought to recover compensatory and punitive damages.3

      Pennsylvania Higher Education Assistance Agency, Inc. d/b/a Fed Loan Servicing
(“Defendant”) filed a motion to dismiss for failure to state a claim pursuant to Tennessee
Rule of Civil Procedure 12.02(6). Defendant acknowledged the reference in the
complaint to the Tennessee Uniform Electronic Transactions Act, Tenn. Code Ann. § 47-
10-101. However, Defendant argued that Brock failed to assert any cause of action
pursuant to the Act, other statutes, or the common law. Thus, Defendant argued that the
complaint did not allege “any causes of action or facts that would support a statutory or
common law claim.” Defendant’s motion concluded with a section entitled, “NOTICE
OF HEARING,” which stated, in bold font, that a hearing on the motion to dismiss
would be held on March 22, 2019, at 9:00 a.m.

       On March 1, Brock filed a reply in response to the motion to dismiss. However,
he did not attend the hearing on the motion on March 22. We do not have a transcript of
the hearing, but according to the trial court’s written order, “the Court heard oral
argument in his absence.” The seven-page written order analyzes the merits of the
motion to dismiss for failure to state a claim. The trial court found that although the
complaint asserted a violation of the Uniform Electronic Transactions Act, it did not
allege any cause of action under the Act, any other statute, or the common law. The trial
court found that the Act specifically authorizes electronic signatures on documents and
requires that they be given the same weight and legal enforceability as an “ink” signature.
As such, the court found no legal support for Mr. Brock’s allegations that his signature
       2
          Tennessee Code Annotated section 47-10-101 simply provides, “This chapter may be cited as
the ‘Uniform Electronic Transactions Act.’”
        3
           From the documents attached to Brock’s complaint, we can discern that his complaint is
referencing student loans and his application for loan forgiveness under the Temporary Expanded Public
Service Loan Forgiveness program. According to those documents, he was notified that he was ineligible
for loan forgiveness because he had not been in repayment status on his current loan for ten years.
Specifically, Fed Loan Servicing informed Brock that because he consolidated his loans in 2014, he could
not receive credit for payments made prior to that date. Brock apparently disputes that he consolidated
his loans in 2014, as he claims that the promissory note for the 2014 consolidation loan contains an
“unauthorized signature” that is “not in accordance with the Tennessee Uniform Electronic Transactions
Act, T.C.A. § 47-10-101.” The promissory note he attached to the complaint has all of his personal
information entered in electronic form, including his typed name in the space provided for the
“Borrower’s Signature.”
                                                 -2-
was not valid or that it was unauthorized merely because the document was signed
electronically. Additionally, the trial court found that no private right of action exists
under the Act and that it does not provide for compensatory, punitive, or any other type
of damages. Furthermore, the trial court found that Defendant was not a party to any
potential contract with Brock and had no involvement in consolidation of the loan.
Defendant was only the current servicing agent for the loan, with the loan being provided
through the United States Department of Education. Finally, the trial court found that to
the extent Brock was asserting a claim to forgiveness under the Public Service Loan
Forgiveness Program, he had not alleged that he followed the necessary administrative
procedures with the Department of Education.

        The trial court cited Tennessee Rule of Civil Procedure 8.01, which requires a
pleading to contain a short and plain statement of the claim showing that the pleader is
entitled to relief. In addition, the trial court quoted Rule 8.05, which provides that every
pleading stating a claim relying on the violation of a statute shall “either specifically refer
to the statute or state all of the facts necessary to constitute such breach so that the other
party can be duly apprised of the statutory violation charged.” Tenn. R. Civ. P. 8.05(1).
The trial court explained that when a complaint fails to comply with Rule 8.05, it is
subject to dismissal pursuant to Rule 12.02(6). The trial court concluded that Brock’s
complaint simply did not contain sufficient factual allegations to articulate a claim for
relief. Therefore, it granted the motion to dismiss filed by Defendant. The trial court’s
written order was entered on March 25, 2019.

       On April 5, 2019, Brock filed a motion to vacate the final order. He claimed that
he did not receive notice that the trial court had granted “a motion for hearing.” Brock
argued that the trial court clerk had a duty to mail notice to him with the date, time, room
number, floor level, judge’s name, and any other specifics regarding “the granting of
hearing.” Brock insisted that the “NOTICE OF HEARING” section of the motion to
dismiss “wasn’t enough” to provide him with notice of the hearing date because defense
counsel mailed him a copy of the motion that was not stamped by the court clerk. For
these reasons, Brock asked the trial court to vacate its final order and permit him to
participate in oral argument.

        Defendant filed a response, noting that Brock had already filed a written response
to the motion to dismiss and that the trial court considered the merits of the issues in
detail in its seven-page written order. Defendant argued that Brock’s motion to vacate
was unsupported by the Rules of Civil Procedure and local rules. Brock filed an
additional response and then filed a notice of appeal before the motion to vacate was
adjudicated. This Court entered a show cause order explaining that the motion to vacate
had to be resolved before the appeal could proceed. After an additional hearing, the trial
court entered an order denying the motion to vacate on September 23, 2019.


                                             -3-
                                   II.   DISCUSSION

       Brock’s pro se brief on appeal does not contain a “statement of the issues
presented for review.” See Tenn. R. App. P. 27(a)(4). Instead, the table of contents and
the argument section of his brief contain two headings stating: “POINT I COUNSEL
FOR APPELLEE CERTIFICATION OF SERVICE” and “POINT II CHANCERY
COURT FINDINGS AND CONCLUSIONS NOT SUPPORTED BY SUFFICIENT
CREDIBLE EVIDENCE AND FINAL ORDER SHOULD BE VACATED.”

       “Appellants must include in their brief ‘a statement of the issues they desire to
present to the court and an argument with respect to each of the issues presented.’”
Cartwright v. Jackson Capital Partners, Ltd. P’ship, 478 S.W.3d 596, 613-14 (Tenn. Ct.
App. 2015) (quoting Hodge v. Craig, 382 S.W.3d 325, 334-35 (Tenn. 2012)) (emphasis
added). “[A]n issue may be deemed waived when it is argued in the brief but is not
designated as an issue in accordance with Tenn. R. App. P. 27(a)(4).” Hodge, 382
S.W.3d at 335. A statement of the issues presented for review is “an integral portion of
an appellate brief as issues that are not properly designated are generally waived even
when argued in the body of the brief.” Augustin v. Bradley Cty. Sheriff's Office, No.
E2018-00281-COA-R3-CV, 2019 WL 4862240, at *4 (Tenn. Ct. App. Oct. 2, 2019); see,
e.g., Mid-S. Maint. Inc. v. Paychex Inc., No. W2014-02329-COA-R3-CV, 2015 WL
4880855, at *11 (Tenn. Ct. App. Aug. 14, 2015) (deeming issues waived where the brief
did not contain a statement of the issues section but the contention was presented within
the argument section of the brief); Forbess v. Forbess, 370 S.W.3d 347, 358 (Tenn. Ct.
App. 2011) (deeming issues waived where the brief contained no statement of the issues
section and rejecting the argument that the “inclusion of headings within [the] table of
contents” was sufficient to present issues on appeal).

      This Court has emphasized the importance of a statement of the issues:

      The most glaring deficiency in the [Appellant’s] appellate brief is the
      complete omission of any statement of issues presented for review. The
      requirement of a statement of the issues raised on appeal is no mere
      technicality. First, of course, the appellee is entitled to fair notice of the
      appellate issues so as to prepare his or her response. Most important, this
      Court is not charged with the responsibility of scouring the appellate record
      for any reversible error the trial court may have committed. On appeal,
      “[r]eview generally will extend only to those issues presented for review.”
      Tenn. R. App. P. 13.

Quaites v. Univ. of Tennessee Coll. of Pharmacy, No. M2011-00923-COA-R3-CV, 2012
WL 172893, at *7 (Tenn. Ct. App. Jan. 19, 2012) (quoting Owen v. Long Tire, L.L.C.,
No. W2011-01227-COA-R3-CV, 2011 WL 6777014 (Tenn. Ct. App. Dec. 22, 2011)).

                                          -4-
         We also note the minimal substantive argument presented by Brock on appeal.
The “POINT I” section of Brock’s brief consists of a single sentence. The “POINT II”
section cites to three specific sections of the Uniform Electronic Transactions Act that
were not identified in Brock’s complaint. His brief does not contain any citations to the
appellate record. “It must be clear that a party has constructed an argument regarding his
or her position on appeal; if not, the matter is subject to waiver.” Heflin v. Iberiabank
Corp., 571 S.W.3d 727, 734 (Tenn. Ct. App. 2018). Brock’s brief on appeal comes
dangerously close to waiving argument on any issues. Pro se litigants are “entitled to fair
and equal treatment by the courts,” but at the same time, courts “must not excuse pro se
litigants from complying with the same substantive and procedural rules that represented
parties are expected to observe.” Gibson v. Bikas, 556 S.W.3d 796, 803 (Tenn. Ct. App.
2018) (quotations omitted). They cannot “‘shift the burden of litigating their case to the
courts.’” Id. (quoting Chiozza v. Chiozza, 315 S.W.3d 482, 487 (Tenn. Ct. App. 2009)).

        We have considered the minimal substantive arguments raised by Brock in his
brief and conclude that they do not entitle him to relief on appeal. Regarding the
dismissal of his complaint, Brock simply cites to three specific sections of the Uniform
Electronic Transactions Act and describes how the electronic signature on his promissory
note allegedly fails to comply with those statutes. However, those three statutes were not
identified in his complaint. His complaint simply alleged a “violation of the Tennessee
Uniform Electronic Transactions Act, T.C.A. § 47-10-101.” Section 47-10-101 states,
“This chapter may be cited as the ‘Uniform Electronic Transactions Act.’” The chapter
consisting of the Act spans sections -101 to -123 and -201 to -202. Yet, the complaint
merely alleged an unspecified “violation” of the Act.

       “The Rules of Civil Procedure require parties to plead with specificity when
asserting claims based on statutory violations[.]” Glanton v. Bob Parks Realty, No.
M2003-01144-COA-R3-CV, 2005 WL 1021559, at *6 (Tenn. Ct. App. Apr. 27, 2005).
Tennessee Rule of Civil Procedure 8.05 “sets the standard for stating a claim or defense
relying upon the violation of a statute.” Holland v. Sullivan, No. M2016-00538-COA-
R3-CV, 2017 WL 3917142, at *5 (Tenn. Ct. App. Sept. 7, 2017). It “imposes a
specificity requirement on a party alleging a statutory violation.” Whalum v. Shelby Cty.
Election Comm’n, No. W2013-02076-COA-R3-CV, 2014 WL 4919601, at *17 (Tenn.
Ct. App. Sept. 30, 2014). Rule 8.05(1) states, in pertinent part,

       Every pleading stating a claim or defense relying upon the violation of a
       statute shall, in a separate count or paragraph, either specifically refer to the
       statute or state all of the facts necessary to constitute such breach so that the
       other party can be duly apprised of the statutory violation charged.

Tenn. R. Civ. P. 8.05(1). “When a complaint fails to comply with Rule 8, it is subject to
dismissal by grant of a motion to dismiss for failure to state a claim upon which relief can
be granted, as provided by Tennessee Rule of Civil Procedure 12.02(6).” Webb v.
                                           -5-
Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 425-26 (Tenn. 2011).

        The trial court found that Brock’s complaint failed to satisfy the requirements of
Rule 8.05, and we agree. It is not the duty of the court or defense counsel to “‘rewrite [a]
plaintiff[’s] complaint so that it complies with Rule 8[.]’” Millen v. Shelby Cty. Dist.
Attorney Office, No. W2011-00303-COA-R3-CV, 2011 WL 3246000, at *7 (Tenn. Ct.
App. July 29, 2011) (quoting Collier v. Federal Land Bank of Louisville, No. 87-150-II,
1987 WL 18379, at *4 (Tenn. Ct. App. Oct. 14, 1987)). Brock’s complaint failed to
“specifically refer to the statute or state all of the facts necessary to constitute such breach
so that the other party can be duly apprised of the statutory violation charged.” See Tenn.
R. Civ. P. 8.05(1).

        We considered a similarly vague allegation in Cobb v. State, No. M2014-01755-
COA-R3-CV, 2017 WL 1404341, at *5 (Tenn. Ct. App. Apr. 17, 2017), where a
complaint generally alleged that the defendants’ conduct violated “the Tennessee Human
Rights Act 4-21-101 et seq.” We held that this “general reference to the Tennessee
Human Rights Act (‘THRA’) [was] insufficient to articulate a claim for retaliation.” Id.
Because the THRA prohibited “a broad range of actions,” the plaintiff “was required
either to cite the specific statutory provision violated or allege sufficient facts to put the
defendants and the court on notice that her claims included a claim for retaliation.” Id.
(citing Tenn. R. Civ. P. 8.05(1)).

       The second “point” argued by Brock mentions the “certification of service” of
Defendants’ counsel. His one-sentence argument references Tennessee Rule of Civil
Procedure 5.01 and various sections of the Davidson County Chancery Court Local
Rules. Rule 5.01 does not support his argument on appeal, as it requires motions to “be
served upon each of the parties,” and Brock admits that he was served by mail with a
copy of the motion. Tenn. R. Civ. P. 5.01. As for the local rules, the trial court found
that Defendant “substantially” complied with the local rules and that Brock had actual
knowledge of the hearing date. The trial court found that it had discretion to proceed
with adjudication of the motion when Brock failed to appear at the hearing, as Local Rule
26.08 provided, “If any party does not appear at a scheduled hearing on a motion or any
other matter scheduled to be heard on the motion docket, the court may strike or
adjudicate the motion.”

        Brock appears to challenge the trial court’s conclusion that counsel substantially
complied with the local rules. However, a trial court may waive requirements of local
rules, and its decision to do so “will not be reversed ‘absent the clearest showing of an
abuse of discretion and that such waiver was the clear cause of a miscarriage of justice.’”
Krohn v. Krohn, No. M2015-01280-COA-T10B-CV, 2015 WL 5772549, at *8 (Tenn. Ct.
App. Sept. 22, 2015) (quoting Killinger v. Perry, 620 S.W.2d 525, 525 (Tenn. Ct. App.
1981)). We discern no abuse of discretion in this case.

                                             -6-
                                  III.   CONCLUSION

       For the aforementioned reasons, the decision of the chancery court is affirmed and
remanded. Costs of this appeal are taxed to the appellant, Jason A. Brock, for which
execution may issue if necessary.

                                                _________________________________
                                                CARMA DENNIS MCGEE, JUDGE




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