Betty J. Nash v. G.L. Waynick ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 14, 2001
BETTY J. NASH v. G. L. WAYNICK
Appeal from the Circuit Court for DeKalb County
No. 7313 John J. Maddux, Jr., Judge
No. M2000-02096-COA-R3-CV - Filed April 12, 2001
This appeal involves a dispute over the sale of a single family home in DeKalb County. The
purchaser filed suit in the Circuit Court for DeKalb County alleging that the seller had violated the
Tennessee Consumer Protection Act and the Tennessee Residential Property Disclosures Act. More
than two years after the first two summonses were returned unserved, the purchaser caused a third
summons to be issued that was served on the seller. The trial court entered a $27,000 default
judgment against the seller on June 21, 2000, after concluding that the seller had been properly
served and had presented no defenses to the purchaser’s claims. On this appeal, the seller, who has
been representing himself throughout these proceedings, asserts that he did not violate either the
Tennessee Consumer Protection Act or the Tennessee Residential Property Disclosure Act and that
the trial court erred by not considering his statute of limitations defense. We have determined that
the purchaser’s suit is time-barred for failure to comply with Tenn. R. Civ. P. 3. Therefore, we
reverse the judgment and remand the case with directions that the purchaser’s complaint be
dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.
G. L. Waynick, Mt. Juliet, Tennessee, Pro Se.
J. Hilton Conger, Smithville, Tennessee, for the appellee, Betty J. Nash.
OPINION
In late September 1996, Betty J. Nash began negotiating with G. L. Waynick about the sale
of his home in DeKalb County. During the process, Mr. Waynick completed and signed a form
required by the Tennessee Residential Property Disclosure Act [Tenn. Code Ann. §§ 66-5-201 to
-210 (Supp. 2000)] that was intended to provide detailed information concerning improvements to
the property and the condition of these improvements. He did not fill out the portions of the form
requesting information about the water supply and waste disposal for the property.1 Where the form
required Mr. Waynick to indicate whether “[t]o the best of [his] knowledge” the garage, water heater,
water supply, or waste disposal systems were not in operating condition, he marked both “no” and
“yes” but placed his initials by “yes.” He did not, however, identify the nature of the problem even
though the form prompted him to do so. Mr. Waynick signed the form and certified that to the best
of his knowledge everything contained in the form reflected true and accurate information. Ms.
Nash signed the form two days later, and on October 25, 1996, Mr. Waynick sold Ms. Nash the
property for $20,000.
After taking possession of the property, Ms. Nash discovered that the house had no sewer
or septic system. On May 9, 1997, she filed suit against Mr. Waynick in the Circuit Court for
DeKalb County, alleging that he had violated the Tennessee Consumer Protection Act and the
Tennessee Residential Property Disclosure Act by knowingly failing to disclose that the property
had no sewer or septic system. The record contains an unfiled copy of a civil summons addressed
to “G. L. Waynick 506 Woodland Ct. Mt. Juliet, TN 37122,” which was presumably filed along with
the complaint. However, there is no indication that any attempt was made to serve this summons.
On August 21, 1997, Ms. Nash issued alias summons to Mr. Waynick at the Woodland Court
address. On August 26, 1997, process was returned unserved and marked “Not Found in Wilson
Co.” On September 23, 1997, Ms. Nash again issued process 2 addressed to Mr. Waynick, but this
time the summons listed Mr. Waynick’s address “% Cedar Creek Boat Dock Lebanon, TN 37087.”
This summons was returned unserved on October 30, 1997, bearing the notation “Not To Be Found
in Wilson Co.” More than two years passed. On November 2, 1999, Ms. Nash issued another
summons to Mr. Waynick, and he was personally served the same day.3
Rather than retaining a lawyer, Mr. Waynick undertook to represent himself in this case. On
November 18, 1999, he filed a letter with the trial court stating:
Answer:
According to Circuit Court Clerk Dekald [sic] County – Statue [sic]
has run on this case since over one year has passed.
1
The form contained a section for the seller to check the method of water sup ply from either (1) C ity, (2) We ll,
(3) Private Utility, or (4) Other. Likewise, the form contained a place for the seller to indicate whether waste disposal
was by (1) City Sewer, (2) Septic Tank, or (3) Other. Mr. Waynick left each box blank.
2
This summons, although in the record, was never file stamped by the clerk’s office.
3
Curiously, the alias plurie s only gives Mr. Waynick’s name and does not provide any location or address for
Mr. Waynick to be served.
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Please see rules of civil procedure (Rule 3 Commencement of Action
of Tennessee)
Attached
Almost seven months after Mr. Waynick filed his “Answer,” Ms. Nash moved for a default
judgment, alleging that Mr. Waynick had not responded to the complaint after being served with
process. At a July 10, 2000 trial conducted without Mr. Waynick, the trial court concluded that Mr.
Waynick had confessed judgment by failing to answer Ms. Nash’s complaint. After considering Ms.
Nash’s evidence of damages, the trial court found that her actual damages were $9,000 and that these
damages should be trebled. Accordingly, on July 21, 2000, the trial court entered a final judgment
against Mr. Waynick for $27,000 plus $2,000 in attorney’s fees. On August 4, 2000, Mr. Waynick
filed a notice of appeal asserting that the trial court’s decisions lacked evidentiary support and that
Ms. Nash’s complaint was time-barred.
After the trial court clerk filed a record consisting of the papers that had been filed in the trial
court, Ms. Nash requested this court to dismiss Mr. Waynick’s appeal because of his failure to
comply with Tenn. R. App. P. 24. We declined to dismiss the appeal because we concluded that the
issue relating to the timeliness of Ms. Nash’s complaint could be decided based on the technical
record alone.
I.
The pivotal issue in this case is whether Mr. Waynick’s “Answer” filed with the trial court
on November 18, 1999, effectively raised an affirmative defense based on Tenn. R. Civ. P. 3. With
admirable candor, counsel for Ms. Nash concedes in his brief that if this document effectively raised
a Tenn. R. Civ. P. 3 defense, then Ms. Nash’s complaint is not timely and should be dismissed based
on this court’s decision in Gregory v. McCulley, 912 S.W.2d 175 (Tenn. Ct. App. 1995). In the
finest tradition of the profession, counsel has provided the court with a succinct and correct
statement of the law and, unlike far too many lawyers these days, has avoided the temptation of
resorting to hair-splitting and obfuscation to further their client’s interests.
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).
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The courts give pro se litigants who are untrained in the law a certain amount of leeway in
drafting their pleadings and briefs. Whitaker v. Whirlpool Corp., 32 S.W.3d at 227; Paehler v.
Union Planters Nat’l Bank, Inc., 971 S.W.2d at 397. Accordingly, we measure the papers prepared
by pro se litigants using standards that are less stringent than those applied to papers prepared by
lawyers. Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S. Ct. 173, 176 (1980); Baxter v. Rose, 523 S.W.2d
930, 939 (Tenn. 1975); Winchester v. Little, 996 S.W.2d 818, 824 (Tenn. Ct. App. 1998).
Pro se litigants should not be permitted to shift the burden of the litigation to the courts or
to their adversaries. They are, however, entitled to at least the same liberality of construction of their
pleadings that Tenn. R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Irvin v. City of
Clarksville, 767 S.W.2d at 652. Even though the courts cannot create claims or defenses for pro se
litigants where none exist, Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. Ct. App. 1994),
they should give effect to the substance, rather than the form or terminology, of a pro se litigant’s
papers. Brown v. City of Manchester, 722 S.W.2d 394, 397 (Tenn. Ct. App. 1986); Usrey v. Lewis,
553 S.W.2d 612, 614 (Tenn. Ct. App. 1977).
II.
Mr. Waynick’s “Answer” does not conform to the format lawyers and judges are accustomed
to. However, it satisfies the essential requirements of Tenn. R. Civ. P. 7.01, 8.03, 10, and 12.01.
The paper was filed with the trial court clerk within thirty days after Mr. Waynick was finally served
with Ms. Nash’s complaint. It contains a caption of the case that (1) identifies the trial court where
the matter is pending, (2) contains the names of the parties, and (3) provides the trial court’s case
number. Most importantly, the paper contains a simple, concise, and plain statute of limitations
defense that is in the spirit, if not the letter, of Tenn. R. Civ. P. 8.05, and it bears the indication that
a copy was sent to the lawyer representing Ms. Nash.
The trial court appears to have been concerned that “Mr. Waynick’s” answer lacked the
certificate of service. While Mr. Waynick did not include a formal certificate of service in his
“Answer,” he included the name and mailing address of Ms. Nash’s lawyer at the top of the page.
In the absence of any claim to the contrary, we conclude that Mr. Waynick must have mailed a copy
of his “Answer” to Ms. Nash’s lawyer on or about the same time he filed it with the trial court clerk.
Ms. Nash’s lawyer has never denied that he received this document or that even the most cursory
examination of the case file would have uncovered it. Thus, even in absence of a customary
certificate of service, we conclude, based on the substance of the “Answer,” that Mr. Waynick
mailed a copy of the “Answer” to the lawyer representing Ms. Nash and, therefore, that Mr. Waynick
effectively complied with the notice requirements in the Tennessee Rules of Civil Procedure.
We conclude that Mr. Waynick timely and effectively asserted a defense based on Tenn. R.
Civ. P. 3. Based on the record, there is no question that Ms. Nash did not commence her action in
a timely manner because she failed to issue new process within one year after the issuance of the
September 1997 process. Gregory v. McCulley, 912 S.W.2d at 178.
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III.
We reverse the judgment and remand the case to the trial court for the entry of an order
dismissing the complaint. We tax the costs of this appeal to Betty J. Nash for which execution, if
necessary, may issue.
__________________________________
WILLIAM C. KOCH, JR., JUDGE
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