Discover Bank v. McCullough, No. M2006-01272-COA-R3-CV (Tenn. App. 1/29/2008)
| Decision Date | 29 January 2008 |
| Docket Number | No. M2006-01272-COA-R3-CV.,M2006-01272-COA-R3-CV. |
| Parties | DISCOVER BANK v. VIENCE McCULLOUGH ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Williamson County; No. 05707; R.E. Lee Davies, Judge.
Judgment of the Circuit Court Reversed and Remanded.
John M. Richardson, Jr. and Steven T. Richardson, Clarksville, Tennessee, for the appellant, Discover Bank.
Dwight G. McQuirter, Spring Hill, Tennessee, for the appellees, Vience McCullough and Sharon McCullough.
William C. Koch, Jr., P.J., M.S., delivered the opinion of the court, in which Patricia J. Cottrell and Frank G. Clement, Jr., JJ., joined.
This appeal involves a dispute between the holders and the issuer of a bank card regarding an $8,549.01 unpaid balance. This straightforward collection case has been complicated by the cardholders' decision to represent themselves and by the inattentiveness of the issuer's lawyer. The issuer of the card filed suit in the Williamson County General Sessions Court seeking to recover the unpaid balance. The cardholders, representing themselves, mailed a response to the general sessions court but failed to appear at the hearing specified in the summons. Accordingly, on July 11, 2005, the general sessions court entered an $8,838.27 default judgment against the cardholders. The cardholders filed many other unintelligible papers in the general sessions court, including a "writ of praecipe." On November 9, 2005, after the general session courts declined to grant them relief, the cardholders filed a notice of appeal to the Circuit Court for Williamson County. The issuer of the bank card filed a motion requesting the circuit court to dismiss the de novo appeal because it was not timely filed. After the issuer's lawyer failed to appear for several hearings, the circuit court vacated the July 11, 2005 default judgment. On this appeal, the issuer of the card asserts that the circuit court lacked subject matter jurisdiction over the cardholders' de novo appeal because the appeal was not perfected within ten days following the entry of the default judgment. The cardholders insist that their de novo appeal was timely because it was filed within ten days after the entry of the general sessions court's order denying the "writ of praecipe." We have determined that the cardholders failed to perfect a timely de novo appeal from the default judgment and, therefore, that the circuit court lacked subject matter jurisdiction over this case. Accordingly, we reverse the circuit court's orders vacating the July 11, 2005 default judgment and remand the case with directions to dismiss the cardholders' de novo appeal.
On April 22, 2005, Discover Bank filed suit in the Williamson County General Sessions Court against Vience M. McCullough and Sharon E. McCullough seeking to recover an unpaid bank card balance of $8,549.01 plus costs. The summons, which stated that the case would be heard on July 11, 2005, was served on the McCulloughs on May 4, 2005. It notified them that failure to appear at the hearing would "result in judgment by default being rendered against you for the relief requested."
The McCulloughs decided to represent themselves. On May 26, 2005, they mailed a "Notice" to the general sessions court in response to the summons. While the document is extremely difficult to comprehend, it appears to be a denial of the McCulloughs' responsibility to pay the outstanding balance on their Discover Card because they had returned the card to the bank and because the bank should be required to take further action to "validate" their debt.1 The document did not request a continuance of the July 11, 2005 hearing, nor did it contain any indication that the McCulloughs would be unable, for any reason, to attend the hearing. When the McCulloughs did not appear at the July 11, 2005 hearing, the general sessions court granted a $8,838.27 default judgment to Discover Bank.
On July 15, 2005, four days following the entry of the default judgment against them, the McCulloughs mailed another copy of their "Notice" to the general sessions court demanding that the clerk of the general sessions court provide them with a copy of the "Notice" showing that it had been received.2 On July 21, 2005 the McCulloughs mailed a document they called a "writ of praecipe" to the general sessions court in which they "commanded [the general sessions court] to enter a default [judgment] against plaintiff" and "to dismiss this case."
On August 26, 2005, the McCulloughs filed additional documents unknown to the practice in general sessions court.3 While these documents reflected their awareness that the July 11, 2005 hearing had been held and that the default judgment had been entered, the McCulloughs provided no reasons for their failure to attend the hearing. The documents simply argued the merits of the McCulloughs' claim that they should not be required to repay the outstanding balance on their Discover Card.
In response to all the McCulloughs' papers, the general sessions court ordered the parties to attend a mandatory settlement conference on October 25, 2005 and set a hearing for February 13, 2006, on the "motion to vacate" contained in the McCulloughs' revised "Notice." The general sessions court denied the McCulloughs' "writ of praecipe" on October 31, 2005. This action prompted the McCulloughs to file more papers. On November 9, 2005, they filed (1) a third version of their "Notice," (2) a motion for declaratory judgment, and (3) a notice of appeal seeking a de novo appeal from the denial of their "writ of praecipe." On December 19, 2005, Discover Bank filed a response requesting that the McCulloughs' motions to amend and for declaratory judgment be dismissed. The McCulloughs filed an amended notice of appeal on January 5, 2006.
The Circuit Court for Williamson County set a hearing on the McCulloughs' appeal from the general sessions court for January 9, 2006. The McCulloughs attended the hearing, but Discover Bank did not. The court reset the hearing for January 23, 2006 and noted that "[f]ailure to appear at said hearing will result in dismissal of the case." Discover Bank moved for a continuance based on short notice and conflicts in its lawyer's schedule. The trial court proceeded with the January 23, 2006 hearing without addressing the motion for continuance and on January 26, 2006 entered an order dismissing Discover Bank's complaint with prejudice.
On January 30, 2006, Discover Bank filed a motion in the trial court to set aside the January 26, 2006 order dismissing its suit against the McCulloughs. Noting all the deficiencies in the papers that the McCulloughs had filed in the general sessions court, the bank asserted that the trial court lacked subject matter jurisdiction over the de novo appeal because the McCulloughs had failed to file their notice of appeal within ten days following the entry of the default judgment as required by Tenn. Code Ann. § 27-5-108(a)(1) (Supp. 2007). On March 6, 2006, the McCulloughs filed a response to the bank's motion in which they argued that they had requested collateral relief from the July 11, 2005 order in their "writ of praecipe" and that their notice of appeal was timely because they filed it within ten days after the October 31, 2005 order denying the writ. Again, the McCulloughs' papers did not offer any reason or justification for their failure to appear at the July 11, 2005 hearing.
The hearing on Discover Bank's motion to set aside the January 26, 2006 order was rescheduled at the request of the bank's lawyer. When neither the bank nor its lawyer appeared at the March 20, 2006 hearing, the trial court entered an order on May 12, 2006 denying the bank's motion to set aside the January 26, 2006 order. After Discover Bank filed a timely notice of appeal, the McCulloughs retained a lawyer to assist them with the appeal.
Self-represented litigants are entitled to fair and equal treatment by the courts. Hessmer v. Miranda, 138 S.W.3d 241, 244 (Tenn. Ct. App. 2003). In Tennessee, trial courts are expected to appreciate and be understanding of the difficulties encountered by a party who is embarking into the maze of the judicial process with no experience or formal training. Whalum v. Marshall, 224 S.W.3d 169, 179 (Tenn. Ct. App. 2006); Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). Thus, courts are expected to take into account that many self-represented litigants have no legal training and are unfamiliar with judicial procedures. Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003).
Accordingly, Tennessee's courts should give self-represented litigants who have no legal training a certain amount of leeway in drafting their pleadings, motions, and other papers. Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003); Nash v. Waynick, No. M2000-02096-COAR-3-CV, 2001 WL 360703, at *3 (Tenn. Ct. App. Apr. 12, 2001) (No Tenn. R. App. P. 11 application filed). They should measure the papers prepared by self-represented litigants using standards that are less stringent than those applied to papers prepared by lawyers. C & W Asset Acquisition, LLC v. Oggs, 230 S.W.3d 671, 678 (Tenn. Ct. App. 2007); Hessmer v. Hessmer, 138 S.W.3d at 903.
Courts, however, must also be mindful of the boundary between fairness to a self-represented litigant and unfairness to that litigant's adversary. Whalum v. Marshall, 224 S.W.3d at 179; Young v. Barrow, 130 S.W.3d at 63. Courts may not excuse self-represented litigants from complying with the same substantive and procedural rules that represented parties are expected to observe. Slone v. Mitchell, 205 S.W.3d 469, 473 (Tenn. Ct. App. 2005); 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)....
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