Ford Motor Credit Company, LLC v. Alice McCormick-Jackson ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Brief May 20, 2015
FORD MOTOR CREDIT COMPANY, LLC v. ALICE MCCORMICK-
JACKSON
Direct Appeal from the Chancery Court for Shelby County
No. CH-14-05693 Oscar C. Carr, III, Chancellor
No. W2014-02485-COA-R3-CV – Filed June 16, 2015
This is an appeal from the trial court‟s order granting Appellee‟s motion for judgment on
the pleadings in a breach of contract case. After the trial court granted Appellee‟s
motion, Appellant filed a notice of appeal pro se. Due to deficiencies in Appellant‟s
brief, we are unable to address the issues she raises on appeal. We therefore affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.
Alice McCormick-Jackson, Memphis, Tennessee, Pro se.
Charles D. Waller, Knoxville Tennessee, for the appellee, Ford Motor Credit Company,
LLC.
MEMORANDUM OPINION1
I. Background
Appellant Alice McCormick-Jackson (“Jackson”) entered into a contract for the
purchase of a vehicle from Dobbs Ford Lincoln Mercury at Wolfchase on December 2,
1
Tennessee Court of Appeals Rule 10 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opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and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.
2009. The contract was subsequently assigned to Appellee Ford Motor Credit Company
LLC (“Ford Credit”). Jackson signed the contract as a co-buyer, and her business, Event
World, LLC, was listed as the buyer. The record indicates that she intended to use the
vehicle as a work vehicle for her business.
Under the contract, Jackson was required to make a total of 48 monthly
installment payments of $903.61. However, sometime after she took possession of the
vehicle, Jackson was diagnosed with a chronic illness, which eventually led her to close
her business. By June 2010, Jackson had fallen very behind on her payments, and Ford
Credit made attempts to repossess the vehicle.
On April 8, 2014, Ford Credit filed suit against Jackson to collect the debt in the
Chancery Court of Shelby County. In its complaint, Ford Credit alleged that Jackson
failed to make all agreed upon monthly payments and that Jackson therefore breached the
contract, resulting in $28,621.87 in damages. Jackson filed an answer, pro se, to Ford
Credit‟s complaint and stated, in relevant part:
1. Ford Motor Credit Company violated the Fair Debt Collection Practices
Act by not accepting any payments on the loan, except a full payoff of
$28,621.87. Ford Motor Credit Company collection agents stated that I
could send in payments, but they were still going to repossess the
vehicle, unless they received a full payoff of $28,621.87. Andrea in
Ford Motor Credit‟s Recovery Department stated that she did not have
time to figure out a settlement amount, she wants to repossess the
vehicle.
2. I never signed as a personal guarantor for this loan. However, after
being diagnosed with incurable illnesses of Congestive Heart Failure
and Cancer, along with loss of business sales, I had to close Event
World LLC. Despite those facts, I made countless attempts to pay this
debt and make amends with Ford Motor Credit Company. However,
my payments were refused by Ford Motor Credit representatives, as
well as Stone & Hinds. I was told that they just wanted to repossess the
vehicle.
3. Ford Motor Credit Company did not make any written demands for
payment of this debt, after the loan was sent to recovery. Only one
demand for payment of this debt was made by Stone & Hinds, around
January 7, 2014. All inquiries and attempts to pay this debt, following
the loan being charged off, were done by me.
Ford Credit filed a motion for judgment on the pleadings, asserting that by virtue
of Tennessee Rule of Civil Procedure 8.04, the allegations in the complaint were
2
admitted because Jackson did not dispute them in her answer.2 Jackson did not file a
response to the motion. The chancery court entered an order on November 19, 2014,
granting Ford Credit‟s motion, finding that even if proven true, the facts pled in Jackson‟s
answer would not establish a defense to the averments made in Ford Credit‟s complaint
and that the facts material to Ford Credit‟s claim were therefore admitted. Jackson
subsequently filed a motion for final decision on attorney fees. Ford Credit withdrew its
request for attorney fees, and the court entered a final order on February 6, 2015.
Jackson filed a timely appeal.
II. Issues Presented
Appellant appears before this Court pro se, as she appeared before the chancery
court. On appeal, though not exactly stated as such, Appellant raises the issue of whether
the trial court erred in granting Ford Credit‟s motion for judgment on the pleadings.3
III. Discussion
This case was disposed of by judgment on the pleadings. When reviewing a trial
court‟s ruling on a motion for judgment on the pleadings, this Court uses the same
standard of review that we use to review orders granting a motion to dismiss for failure to
state a claim. Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003). Therefore,
we review the trial court‟s decision de novo without a presumption of correctness.
Waller v. Bryan, 16 S.W.3d 770, 773 (Tenn. Ct. App. 1999). The appellate court “must
accept as true „all well-pleaded facts and all reasonable inferences drawn therefrom‟
alleged by the party opposing the motion.” Cherokee Country Club, Inc. v. City of
Knoxville, 152 S.W.3d 466, 470 (Tenn. 2004) (quoting McClenahan v. Cooley, 806
2
Tennessee Rule of Civil Procedure 8.04 provides: “Averments in a pleading to which no responsive
pleading is required or permitted shall be taken as denied or avoided. Averments in a pleading to which a
responsive pleading is required are admitted when not denied in the responsive pleading . . . .” Tenn. R.
Civ. P. 8.04. Additionally, Tennessee Rule of Civil Procedure 12.03 provides: “After the pleadings are
closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.”
Tenn. R. Civ. P. 12.03.
3
Appellant‟s brief fails to state the issues that she attempts to raise on appeal with clarity. In addition to
the first issue, Appellant states in the “STATEMENT OF THE ISSUE PRESENTED FOR REVIEW”
section of her brief, “Further, the collection attorney, Stone & Hinds Law Firm did not purchase the debt
from the original creditor, Ford Motor Credit Company, LLC.” We decline to address this second issue
because it was raised for the first time on appeal. Appellant did not raise a question regarding the
ownership of her account in her answer, nor did she take the opportunity to do so in the trial court by
responding to Ford Credit‟s motion for judgment on the pleadings. It is well settled that issues not
asserted in the trial court cannot be raised for the first time on appeal. See Barnes v. Barnes, 193 S.W.3d
495, 501 (Tenn. 2006).
3
S.W.2d 767, 769 (Tenn. 1991)).
We recognize that Appellant is proceeding pro se and 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). 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). “The courts give pro se litigants who
are untrained in the law a certain amount of leeway in drafting their pleadings and
briefs… [and] should give effect to the substance, rather than the form or terminology, of
a pro se litigant‟s papers.” Young, 130 S.W.3d at 63 (citations omitted). However,
“[p]ro se litigants are not . . . entitled to shift the burden of litigating their case to the
courts.” Whitaker, 32 S.W.3d at 227. We cannot excuse pro se litigants from complying
with substantive and procedural rules with which represented parties are expected to
adhere, Young, 130 S.W.3d at 63, (citing Edmundson v. Pratt, 945 S.W.2d 754, 755
(Tenn. Ct. App. 1996)), and we cannot create claims or defenses for pro se litigants
where none exist. Id.
Although we have given Appellant the benefit of the doubt, the shortcomings in
her brief on appeal prevent this Court from reaching the substantive issues that she
attempts to raise. Tennessee Rule of Appellate Procedure 27(a)(2) requires that a party‟s
brief contain “[a] table of authorities, including cases (alphabetically arranged), statutes
and other authorities cited, with references to the pages in the brief where they are cited.”
Tenn. R. App. P. 27(a)(2). Additionally, Tenn. R. App. P. 27(a)(7) requires:
(7) An argument, which may be preceded by a summary of
argument, setting forth:
(A) the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities and
appropriate references to the record (which may be quoted verbatim) relied
on; and
(B) for each issue, a concise statement of the applicable standard of
review (which may appear in the discussion of the issue or under a separate
heading placed before the discussion of the issues)[.]
Tenn. R. App. P. 27(a)(7) (emphasis added).
Appellant‟s brief clearly falls short of the standard set by these provisions. The
brief fails to cite to facts in the record or to any case, statute, or other authority to support
her position. In fact, a table of authorities is notably missing from the brief altogether. In
addition, the “ARGUMENT” section of her brief is approximately one-half of a page in
length, and it contains no citations or any cognizable legal argument. Appellant‟s
argument merely consists of the very facts that she alleged in her answer to Ford Credit‟s
complaint along with some additional facts that are irrelevant to establishing an
4
affirmative defense to the breach of contract claim.
In Bean v. Bean, this Court observed:
Courts have routinely held that the failure to make appropriate references to
the record and to cite relevant authority in the argument section of the brief
as required by Rule 27(a)(7) constitutes a waiver of the issue. See State v.
Schaller, 975 S.W.2d 313, 318 (Tenn.Crim.App.1997); Rampy v. ICI
Acrylics, Inc. 898 S.W.2d 196, 210 (Tenn.Ct.App.1994); State v.
Dickerson, 885 S.W.2d 90, 93 (Tenn.Crim.App.1993). Moreover, an issue
is waived where it is simply raised without any argument regarding its
merits. See Blair v. Badenhope, 940 S.W.2d 575, 576-577
(Tenn.Ct.App.1996); Bank of Crockett v. Cullipher, 752 S.W.2d 84, 86
(Tenn.Ct.App.1988).
. . . . This Court is under no duty to verify unsupported allegations in
a party‟s brief, or for that matter consider issues raised but not argued in the
brief. Duchow v. Whalen, 872 S.W.2d 692, 693 (Tenn.Ct.App.1993) (citing
Airline Const. Inc., v. Barr, 807 S.W.2d 247 (Tenn.Ct.App.1990)).
Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000). Because Appellant has failed
to comply with Tenn. R. App. P. 27, Appellant has waived any issues raised on appeal.
IV. Conclusion
For the foregoing reasons, the decision of the trial court is hereby affirmed. Costs
of this appeal are taxed to the appellant, Alice McCormick-Jackson. Because Alice
McCormick-Jackson is proceeding in forma pauperis in this appeal, execution may issue,
if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
5