Dr. Victor W. McLaughlin, M.D. v. Elizabeth King McLaughlin a/k/a Rev. Elizabeth King

10/28/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
July 18, 2019 Session

DR. VICTOR W. McLAUGHLIN, M.D. v. ELIZABETH KING
McLAUGHLIN A/K/A REV. ELIZABETH KING

Appeal from the Chancery Court for Anderson County
No. 16CH7875 M. Nichole Cantrell, Chancellor

No. E2018-01319-COA-R3-CV

The plaintiff filed this action on a sworn account, seeking to recover $20,451.00 that he
had allegedly loaned in several money transfers to the defendant, plus prejudgment
interest and costs. In her answer to the complaint, the defendant denied all substantive
allegations but failed to raise any affirmative defenses. At trial, the defendant stipulated
to having received the money transfers. However, she requested that the court allow her
to orally swear under oath that the transfers did not constitute a valid debt. The trial court
found that the defendant was attempting to assert an affirmative defense that the transfers
constituted gifts rather than loans and that she had waived such a defense pursuant to
Tennessee Rule of Civil Procedure 8.03 by failing to raise it in her responsive pleading.
The trial court entered a judgment in favor of the plaintiff in the total amount of
$33,942.69, including prejudgment interest. The defendant filed a motion to alter or
amend, requesting that the judgment be vacated on the ground that under Tennessee Code
Annotated § 24-5-107 (2017), she should have been allowed to raise any defense orally at
trial. Following a hearing, the trial court found that because the defendant had elected to
file a responsive pleading, she was required to raise the affirmative defense in the
pleading. The trial court thereby declined to vacate the judgment. The defendant has
appealed. Discerning no reversible error, we affirm.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.

Sal W. Varsalona and Elizabeth M. Burrell, Clinton, Tennessee, for the appellant,
Elizabeth King McLaughlin a/k/a Rev. Elizabeth King.
Joseph J. Levitt, Jr., Knoxville, Tennessee, for the appellee, Dr. Victor W. McLaughlin,
M.D.

OPINION

I. Factual and Procedural Background

The plaintiff, Victor W. McLaughlin, M.D. (“Dr. McLaughlin”), is the former
father-in-law of the defendant, Elizabeth King McLaughlin a/k/a Rev. Elizabeth King
(“Ms. King”).1 On March 11, 2016, Dr. McLaughlin filed a complaint in the Anderson
County Chancery Court (“trial court”), averring that during a time period spanning June
8, 2010, through July 31, 2012, Ms. King had received twenty-seven loans from him in
the total principal amount of $20,451.00. He requested a judgment in the total amount of
$31,085.15, including the principal and accrued interest, plus ten-percent prejudgment
interest and discretionary costs. Dr. McLaughlin attached to his complaint a “Sworn
Account,” executed by him and stating that the amount requested was “justly due and
owing” to him by Ms. King. On April 25, 2016, Ms. King filed an answer, denying all
substantive allegations but asserting no affirmative defense. Ms. King’s answer was
signed by her attorney on her behalf. The answer was not signed by Ms. King personally,
and no affidavit was attached.

The trial court conducted a hearing on July 25, 2017. No transcript or statement of
the evidence for this hearing is in the appellate record. However, the record does contain
an exhibit presented during the hearing by Dr. McLaughlin and stipulated to by Ms. King
(“Stipulated Exhibit”). The Stipulated Exhibit, titled, “Plaintiff’s loans to Defendant with
simple interest at 10% per annum,” reflects that Ms. King acknowledged receiving
twenty-seven money transfers from Dr. McLaughlin’s bank account to her bank account
between the dates of June 8, 2010, and July 31, 2012. Each transfer is listed under a
column labeled, “Loan,” and the Stipulated Exhibit concludes with the following:

Total Principal $20,451.00
Total Accrued Interest 13,491.69
Total Owed $33,942.69

On August 18, 2017, the trial court entered a “Final Judgment,” granting to Dr.
McLaughlin a money judgment in the amount of $33,942.69 and assessing costs against

1
In an affidavit filed with her motion to alter or amend, the appellant confirmed that “Elizabeth King is
one in the same person as Elizabeth King McLaughlin and Rev. Elizabeth King.” Because the appellant
has referred to herself throughout her appellate brief as “Ms. King,” rather than “Rev. King,” we will
refer to her as “Ms. King” throughout this opinion for ease of reference and consistency. No disrespect is
intended.
2
Ms. King. Noting that it had considered the pleadings, the Stipulated Exhibit, the
arguments of counsel, and the record as a whole, the trial court specifically found:

a) That from time to time between June 8, 2010 and July 31, 2012,
[Ms. King] did receive bank transfers from [Dr. McLaughlin]
totaling $2[0],451.00.[2]

b) That [Dr. McLaughlin] contends that each of these transfers was a
loan to [Ms. King].

c) That [Ms. King] denies owing [Dr. McLaughlin] any money.

d) That there is case law presumption that such transfers are a loan and
not a gift.

e) That under that case law presumption the burden of proof shifts to
[Ms. King] to prove the affirmative defense that such transfers were
a gift and not a loan.

f) Tennessee Rules of Civil Procedure, Rule 8.03 states that affirmative
defenses shall be pled in responsive pleadings.

g) That [Ms. King’s] pleadings in this case do not raise any affirmative
defense.

h) That because [Ms. King] has failed to plead any affirmative defense
she may not seek to prove an affirmative defense at trial. Any such
defense is waived.

i) That [Dr. McLaughlin] is entitled to recover $20,451.00 in principal
loans to [Ms. King] and interest in the amount of $13,491.69, for a
total of $33,942.69.

Ms. King filed a “Motion to Alter or Amend/Reconsider,” pursuant to Tennessee
Rule of Civil Procedure 59.04, on September 7, 2017, requesting that the trial court
vacate the final judgment and reset for trial. Ms. King stated in her motion that during
the July 25, 2017 hearing, her counsel had informed the trial court that Ms. King “was
prepared to orally deny the Complaint on Sworn Account and proceed with the trial.” As
noted in the trial court’s order, the court denied Ms. King’s counsel’s request and took
2
The trial court in this order inadvertently listed the principal amount as $21,451.00 in paragraph (a) but
correctly stated it as $20,451.00 in paragraph (i).
3
the matter under advisement, ultimately concluding that Ms. King was required to raise
an affirmative defense in her pleadings pursuant to Tennessee Rule of Civil Procedure
8.03. In her motion to alter or amend, Ms. King requested that she “be allowed to orally
deny the Complaint on Sworn Account, as dictated in T.C.A. § 24-5-107, and proceed
with the evidentiary trial,” or, alternatively, that she “be allowed to present evidence in
support” of her position. Dr. McLaughlin filed a response objecting to the motion to alter
or amend.

Following a hearing, the trial court entered an order on November 9, 2017,
denying Ms. King’s request to vacate the judgment. However, the trial court, sua sponte
upon consideration of the record, amended the previous order by vacating the award of
interest. The court found that “there was no evidence offered by [Dr. McLaughlin] at the
time of the trial that would provide proof that [Dr. McLaughlin] was entitled to interest
on the princip[al] of $20,451.00.” In this order, the trial court directed the parties to
“appear before this Court to offer proof and argument regarding the interest amount
owed, if any” upon the principal awarded to Dr. McLaughlin.

In denying Ms. King’s request to vacate the award of principal, the trial court
specifically found:

Upon the calling of the case and the beginning of the trial, the parties
entered into a [Stipulated Exhibit]. The stipulation was that [Ms. King]
acknowledges that she received from [Dr. McLaughlin] numerous amounts
of money via check totaling the amount of $20,451.00. Upon the
stipulation being made [Dr. McLaughlin] moved for a Judgment on the
Pleadings.

***

[Dr. McLaughlin] argued that [Ms. King] availed [herself] of the
option to enter an Answer to the Complaint instead of relying on the
statu[te] T.C.A. § 24-5-107(b) which would allow [Ms. King] to appear and
orally deny the account under oath and that T.R.C.P. [8.03] applies and any
affirmative defenses should have been raised in said Answer.

In [Ms. King’s] trial brief [Ms. King] relies heavily on the case of
Clark Power Services Inc. v. [Mitchell], Tenn. [Ct.] App. E[2007]-01489-
00A-R3[-]CV, May 27, 2008, an unreported case out of the Court of
Appeals from May 27, 2008. This present matter is distinguishable from
the referenced case in that in this matter [Ms. King] filed a responsive
pleading, the Answer that is referred to above. In the Clark matter the
4
 Respondent had not filed an answer and appeared at a Motion for Default
wherein the Court applied the default Judgment procedure pursuant to
T.R.C.P. 55.01 rather than the mandatory procedure for suit on a sworn
account provided in T.C.A. 24-5-107. Finding that the present case before
this Court is distinguishable from Clark Power Services Inc. . . . the Court
concludes that the judgment on the pleadings issued by this Court following
the stipulation entered by the parties and [Ms. King’s] failure to plead
affirmative defenses in the Answer stands as it relates to [Dr. McLaughlin]
being entitled to recover the $20,451.00 and princip[al] owed to [Dr.
McLaughlin].

Ms. King filed a notice of appeal on December 8, 2017. The appeal was
subsequently dismissed by order of this Court for lack of compliance with Tennessee
Rule of Appellate Procedure 24(d) because no transcript, statement of the evidence, or
notice informing the Court that neither would be submitted had been filed. On remand
following the dismissal of the appeal, the trial court conducted an evidentiary hearing on
July 2, 2018, upon the court’s previous request that the parties present additional
evidence concerning Dr. McLaughlin’s claim for prejudgment interest.

On July 9, 2018, the trial court entered an order, reinstating the initial award to Dr.
McLaughlin of $13,491.69 in prejudgment interest, for a total money judgment in the
amount of $33,942.69. The trial court specifically found that Dr. McLaughlin “had a loss
of use of the funds loaned and is entitled to pre-judgment interest” and that “the award of
pre-judgment interest is fair and equitable.” Ms. King timely appealed from the July 9,
2018 judgment, also filing a transcript of the July 2, 2018 hearing.

II. Issue Presented

Ms. King raises one issue on appeal, which we have restated as follows:

Whether the trial court erred by failing to follow the procedure set forth in
Tennessee Code Annotated § 24-5-107 for an action brought upon a sworn
account when the court found that Ms. King had waived any affirmative
defenses by failing to raise them in her responsive pleading.

III. Standard of Review

Our review of the trial court’s judgment following a non-jury proceeding is de
novo upon the record with a presumption of correctness as to the trial court’s findings of
fact unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d);
Rogers v. Louisville Land Co., 367 S.W.3d 196, 204 (Tenn. 2012). “In order for the
5
evidence to preponderate against the trial court’s finding of fact, the evidence must
support another finding of fact with greater convincing effect.” Wood v. Starko, 197
S.W.3d 255, 257 (Tenn. Ct. App. 2006) (citing Rawlings v. John Hancock Mut. Life Ins.
Co., 78 S.W.3d 291, 296 (Tenn. Ct. App. 2001)). We review the trial court’s conclusions
of law de novo with no presumption of correctness. Hughes v. Metro. Gov’t of Nashville
& Davidson Cty., 340 S.W.3d 352, 360 (Tenn. 2011). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall not be
disturbed absent clear and convincing evidence to the contrary. See Morrison v. Allen,
338 S.W.3d 417, 426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

In awarding the principal amount sought of $20,451.00, the trial court granted Dr.
McLaughlin’s motion for judgment on the pleadings and subsequently denied Ms. King’s
motion to alter or amend insofar as she requested complete vacation of the judgment. A
motion for judgment on the pleadings may be filed “[a]fter the pleadings are closed but
within such time as not to delay the trial.” Tenn. R. Civ. P. 12.03. As our Supreme Court
has explained:

In reviewing a trial court’s ruling on a motion for judgment on the
pleadings, we must accept as true “all well-pleaded facts and all reasonable
inferences drawn therefrom” alleged by the party opposing the motion.
McClenahan v. Cooley, 806 S.W.2d 767, 769 (Tenn. 1991). In addition,
“[c]onclusions of law are not admitted nor should judgment on the
pleadings be granted unless the moving party is clearly entitled to
judgment.” Id.

Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 470 (Tenn. 2004).
“We review a trial court’s denial of a Tenn. R. Civ. P. 59.04 motion to alter or amend a
judgment for abuse of discretion.” Robinson v. Currey, 153 S.W.3d 32, 38 (Tenn. Ct.
App. 2004) (quoting Chambliss v. Stohler, 124 S.W.3d 116, 120 (Tenn. Ct. App. 2003)).
See In re Estate of Greenamyre, 219 S.W.3d 877, 886 (Tenn. Ct. App. 2005) (“[A] trial
court will be found to have ‘abused its discretion’ only when it applies an incorrect legal
standard, reaches a decision that is illogical, bases its decision on a clearly erroneous
assessment of the evidence, or employs reasoning that causes an injustice to the
complaining party.”) (internal citations omitted).

Statutory interpretation is a question of law, which we review de novo with no
presumption of correctness. See In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn.
2009). Our Supreme Court has summarized the principles involved in statutory
construction as follows:

6
 When dealing with statutory interpretation, well-defined precepts apply.
Our primary objective is to carry out legislative intent without broadening
or restricting the statute beyond its intended scope. Houghton v. Aramark
Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing
legislative enactments, we presume that every word in a statute has
meaning and purpose and should be given full effect if the obvious
intention of the General Assembly is not violated by so doing. In re
C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we
apply the plain meaning without complicating the task. Eastman Chem.
Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is
simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus.,
Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is
ambiguous that we may reference the broader statutory scheme, the history
of the legislation, or other sources. Parks v. Tenn. Mun. League Risk
Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). Further, the language of a
statute cannot be considered in a vacuum, but “should be construed, if
practicable, so that its component parts are consistent and reasonable.”
Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968). Any
interpretation of the statute that “would render one section of the act
repugnant to another” should be avoided. Tenn. Elec. Power Co. v. City of
Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We also must
presume that the General Assembly was aware of any prior enactments at
the time the legislation passed. Owens v. State, 908 S.W.2d 923, 926
(Tenn. 1995).

Id. at 613-14.

IV. Timeliness of Appeal

As a threshold matter, we note that Dr. McLaughlin asserts in his appellate brief
that Ms. King has appealed the July 9, 2018 order reinstating the interest award but has
“abandoned” the appeal of that order, apparently because the issue raised here by Ms.
King concerns the trial court’s November 9, 2017 order denying her motion to alter or
amend from which she filed her first notice of appeal on December 8, 2017. Dr.
McLaughlin thereby implies that Ms. King can now appeal solely the trial court’s order
entered upon remand after dismissal of the previous notice of appeal she had filed. Under
the unique procedural situation in this case, we disagree.

Although this Court’s dismissal of the first appeal filed by Ms. King was due to
her failure to file a transcript, statement of the evidence, or notice that neither would be
filed, pursuant to Tennessee Rule of Appellate Procedure 24(d), the record indicates that
7
when Ms. King filed her first notice of appeal, the trial court had not yet entered a final
judgment. In its November 9, 2017 order, the trial court directed the parties to “appear
before this Court to offer proof and argument regarding the interest amount owed, if any”
upon the principal awarded to Dr. McLaughlin. Ms. King filed her notice of appeal of
the November 9, 2017 order before the trial court had an opportunity to conduct such an
evidentiary hearing.

An order that does not adjudicate all the claims between all the parties is “subject
to revision at any time before entry of a final judgment” and is not appealable as of right.
See Tenn. R. App. P. 3(a); see also In re Estate of Henderson, 121 S.W.3d 643, 645
(Tenn. 2003) (“A final judgment is one that resolves all the issues in the case, ‘leaving
nothing else for the trial court to do.’”) (quoting State ex rel. McAllister v. Goode, 968
S.W.2d 834, 840 (Tenn. Ct. App. 1997)). We therefore determine that we lacked subject
matter jurisdiction in this case when Ms. King filed her initial notice of appeal. See
Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990) (“Unless an appeal from
an interlocutory order is provided by the rules or by statute, appellate courts have
jurisdiction over final judgments only.”). Accordingly, we now treat this appeal as
prompted by a timely filed notice of appeal of the trial court’s entire judgment in this
matter. See Tenn. R. App. P. 4(d) (“A prematurely filed notice of appeal shall be treated
as filed after the entry of the judgment from which the appeal is taken and on the day
thereof.”).

V. Timeliness of Affirmative Defense

Ms. King contends that the trial court erred by finding that she had waived any
affirmative defenses by failing to raise them in her responsive pleading. Ms. King argues
that under the plain language of Tennessee Code Annotated § 24-5-107, the trial court
should have allowed her to orally present any defense, whether affirmative or non-
affirmative, at the time of trial as part of a sworn denial of the complaint. Dr.
McLaughlin contends that the trial court properly found that Ms. King had effectively
waived any affirmative defenses, including a defense that the money transfers were gifts
rather than loans. Upon our thorough review of the record and applicable authorities, we
agree with Dr. McLaughlin on this issue.

Regarding actions on sworn accounts, Tennessee Code Annotated § 24-5-107
provides:

(a) An account on which action is brought, coming from another state or
another county of this state, or from the county where suit is
brought, with the affidavit of the plaintiff or its agent to its
correctness, and the certificate of a state commissioner annexed
8
 thereto, or the certificate of a notary public with such notary public’s
official seal annexed thereto, or the certificate of a judge of the court
of general sessions, with the certificate of the county clerk that such
judge is an acting judge within the county, is conclusive against the
party sought to be charged, unless that party on oath denies the
account or except as allowed under subsection (b).

(b) The court shall allow the defendant orally to deny the account under
oath and assert any defense or objection the defendant may have.
Upon such denial, on the plaintiff’s motion, or in the interest of
justice, the judge shall continue the action to a date certain for trial.

As this Court has explained:

“The reason and policy of this act are said to be to furnish an easy and
ready means of collecting accounts when no real defense exists, unless it
shall be denied on oath, and the plaintiff thereby notified to make proof.”
Funk v. Target Nat’l Bank/Target Visa, No. E2006-02010-COA-R3-CV,
2007 WL 1555843, at *2 (Tenn. Ct. App. E.S., filed May 30, 2007) (citing
Foster v. Scott County, 107 Tenn. 693, 65 S.W. 22, 23 (Tenn. 1901)
(discussing a predecessor statute to Section 24-5-107)).

Am. Express Bank, FSB v. Fitzgibbons, 362 S.W.3d 93, 96-97 (Tenn. Ct. App. 2011).

In the case at bar, Ms. King filed an unsworn answer to the complaint in which she
asserted a general denial of all substantive allegations but raised no affirmative defenses.
Her responsive pleading stated that she was acting “by and through counsel,” and it was
signed by her attorney but not by her. No affidavit or unsworn declaration meeting the
requirements of Tennessee Rule of Civil Procedure 72 was attached to the answer. Ms.
King acknowledges that she subsequently responded to Dr. McLaughlin’s requests for
admissions. This discovery document is not in the record before us but was apparently
before the trial court during the July 2017 hearing, as noted in the August 2017 judgment
stating that the court had considered Ms. King’s “Responses to Plaintiff’s Requests for
Admission.” On appeal, Dr. McLaughlin notes that Ms. King’s responses to the requests
for admissions formed the basis of the Stipulated Exhibit, which is in the appellate
record. Ms. King asserts on appeal that in her responses to the admissions requests, she
“did admit receiving the amounts from [Dr. McLaughlin], but denied she owed [Dr.
McLaughlin] for the alleged ‘loans.’” Ms. King does not dispute that she agreed to the
Stipulated Exhibit despite its labeling of the money transfers as “loans.” Nonetheless, the
record indicates that at the point of the July 2017 hearing, Ms. King had not sworn to her

9
denial of the validity of the debt but had only stated it in her answer and purportedly in
her responses to Dr. McLaughlin’s requests for admissions.

Ms. King thereby asserts that because she had not entered a sworn denial of the
debt prior to the July 2017 hearing, the trial court should have allowed her to do so orally
on the day of trial pursuant to Tennessee Code Annotated § 24-5-107. We note that we
are unable to review exactly what occurred during the July 2017 hearing because Ms.
King has not provided a transcript or statement of the evidence for that proceeding in the
appellate record. See Tenn. R. App. P. 24(b)-(c) (setting forth the appellant’s
responsibility to provide a transcript or statement of the evidence); Lallemand v. Smith,
667 S.W.2d 85, 88 (Tenn. Ct. App. 1983) (“[I]n the absence of a transcript of the
evidence, it is well settled that the ‘findings of fact made by the trial court are supported
by the evidence heard in that court and must be accepted as true by the appellate court.’”
(quoting J.C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d 586, 587 (Tenn.
1979))). However, it is clear from the trial court’s August 2017 order that the court had
accepted Ms. King’s responsive pleading as a denial of the debt, albeit not a sworn
denial. In this order, the trial court stated as part of its findings of fact that Ms. King
“denies owing [Dr. McLaughlin] any money.”

In her motion to alter or amend the judgment, Ms. King averred that the trial court
had denied her counsel’s request “to proceed with the trial, where [Ms. King] was
prepared to orally deny the validity of the sworn account under oath and offer evidence of
non-affirmative defenses to the complaint on sworn account.” Ms. King attached to her
motion, inter alia, an “Affidavit of Elizabeth King,” which she had executed before a
notary on August 30, 2017. In her affidavit, Ms. King stated that she, “on the day the
matter was set for a trial, July 25, 2017, was prepared to be sworn under oath and orally
deny the validity of the Complaint on the ‘Sworn Account,’ referenced above.” Ms. King
in her affidavit did not offer any detail as to the theory upon which she would deny the
validity of the loan after having already stipulated to the money transfers in the Stipulated
Exhibit. We therefore determine that in its August 2017 judgment, the trial court had
recognized Ms. King’s denial of the validity of the debt, although the court had deemed
any affirmative defenses waived.

The trial court, in its order denying the motion to alter or amend, described in
greater detail what had occurred during the July 2017 hearing. The court stated that it
had granted Dr. McLaughlin’s motion for judgment on the pleadings upon consideration
of the following argument:

[Dr. McLaughlin’s] argument was that once the stipulation was
entered by the parties, wherein [Ms. King] admitting to hav[ing] received
the amounts from [Dr. McLaughlin] via check, that a presumption arose
10
 that the payments received are assumed to be loans and not gifts. [S]ee
Gillia v. [Gillia] [No. 02A01-9411-PB-00250,] 1995 WL 702790[, at] *2
[(Tenn. Ct. App. Nov. 28, 1995)]. After the presumption was raised by the
entrance of the [Stipulated Exhibit], the burden shifts to [Ms. King] to offer
any proof that the payments received were gifts and not loans. Any
assertion by [Ms. King] that the payments were gifts and not loans is an
affirmative defense under T.R.C.P. [8.03]. That having failed to state or
plea any affirmative defenses in the answer that was filed by [Ms. King] in
this action on April 25, 2016, [Ms. King] waived the affirmative defense.

Therefore, the Court issued an Order of Judgment on the pleadings
finding that there was the presumption that the amounts received were
loans and not gifts that [Ms. King] failed to plead the affirmative defense,
and that having failed to plead the affirmative defense under T.R.C.P.
[8.03] said affirmative defense was waived and [Dr. McLaughlin] was
entitled to Judgment on the Pleadings.

In the memorandum of law filed in support of her motion to alter or amend, Ms.
King stated that she “was prepared to offer testimony to support her contention she did
not owe the alleged debt,” a contention that she maintained would constitute a “non-
affirmative defense.” She also stated that she “was prepared to offer testimony to support
her contention there was never a contract between the parties,” which she also maintained
was not an affirmative defense. But see In re Conservatorship of Hurline v. Hutchins,
978 S.W.2d 938, 941 (Tenn. Ct. App. 1997) (noting as an “affirmative defense” the
defendant’s assertion in an answer to the complaint that “no contract existed between the
parties” as to the services at issue); Price v. Mercury Supply Co., 682 S.W.2d 924, 928
(Tenn. Ct. App. 1984) (noting as an “affirmative defense” the defendant’s assertion that
“no oral contract was ever made”). Despite Ms. King’s protestations, it is difficult to
imagine how, once the Stipulated Exhibit had been presented, her contentions could
amount to any defense other than that the money transfers she received were gifts rather
than loans.

Regarding “whether a check delivered constitutes a loan or a gift,” this Court has
explained:

The general rule is that the burden of proof rests on him who affirms, not
on him who denies, and this burden never shifts.

However, when there exists a presumption that arises from a
particular fact, the presumption may serve to establish plaintiff’s prima
facie case, thereby forcing a defendant to answer the prima facie case.
11
 Tennessee law has established that a presumption arises from the
delivery of a check. That presumption is that the delivery of a check
indicates that the check is intended as a loan, and not as a gift.

***

Because the law presumes the delivery of a check is a loan and not a gift,
[proof of delivery] successfully ma[kes] out a prima facie case of a loan.

This presumption cause[s] the weight of the evidence to shift. . . .
[A] claim that the loan was a gift is an affirmative defense. Thus, [the party
asserting the defense] ha[s] the burden of proving the essentials of an inter
vivos gift, which are (1) an intention of the donor to give and (2) delivery of
the subject of the gift. The burden is upon the donee to clearly prove both
of these elements and any doubts should be resolved against the finding of
a gift.

Floyd v. Akins, 553 S.W.3d 469, 480-81 (Tenn. Ct. App. 2017), perm. app. denied (Tenn.
Mar. 15, 2018) (quoting Gillia v. Gillia, No. 02A01-9411-PB-00250, 1995 WL 702790,
at *2 (Tenn. Ct. App. Nov. 28, 1995) (internal citations from Gillia omitted in Floyd).
Although in this case, the money transfers at issue were from Dr. McLaughlin’s bank
account to Ms. King’s bank account, rather than via paper checks, we determine that the
effect of the presumption is the same. See, e.g., Floyd, 553 S.W.3d at 483 (analyzing
transfers from a joint bank account, shared by the defendant and the decedent, to the
plaintiff’s bank account in the same manner as checks that had been written from the
joint bank account to the plaintiff).

We agree with the trial court’s finding that Ms. King’s claim that the money
transfers did not constitute loans is a “matter constituting an affirmative defense” under
Tennessee Rule of Civil Procedure 8.03. See Floyd, 553 S.W.3d at 480 (“[A] claim that
the loan was a gift is an affirmative defense.” (quoting Gillia v. Gillia, No. 02A01-9411-
PB-00250, 1995 WL 702790, at *2 (Tenn. Ct. App. Nov. 28, 1995))). Regarding
affirmative defenses, Rule 8.03 provides:

In pleading to a preceding pleading, a party shall set forth affirmatively
facts in short and plain terms relied upon to constitute accord and
satisfaction, arbitration and award, express assumption of risk, comparative
fault (including the identity or description of any other alleged tortfeasors),
discharge in bankruptcy, duress, estoppel, failure of consideration, fraud,
illegality, laches, license, payment, release, res judicata, statute of frauds,
12
 statute of limitations, statute of repose, waiver, workers’ compensation
immunity, and any other matter constituting an affirmative defense. When
a party has mistakenly designated a defense as a counterclaim or a
counterclaim as a defense, the court, if justice so requires, shall treat the
pleading as if there had been a proper designation.

(Emphasis added.) “Failure to ple[a]d an affirmative defense generally results in a
waiver of the defense.” ADT Sec. Servs., Inc. v. Johnson, 329 S.W.3d 769, 778 (Tenn.
Ct. App. 2009); but see Tenn. R. Civ. P. 15.02 (“When issues not raised by the pleadings
are tried by express or implied consent of the parties, they shall be treated in all respects
as if they had been raised in the pleadings.”).

On appeal, Ms. King argues that under the sworn account statute, she should have
been allowed to assert any defense, whether affirmative or not, at trial because she had
not yet sworn to her denial of the account. In support of her argument, Ms. King has
relied heavily at trial and on appeal on this Court’s decision in Clark Power Servs., Inc. v.
Mitchell, No. E2007-01489-COA-R3-CV, 2008 WL 2200047, at *3 (Tenn. Ct. App. May
27, 2008). In Clark, this Court set aside a default judgment in favor of the plaintiff
company, which had filed the complaint on a sworn account against two defendants, who
had allegedly stopped payment on a check for repair services. Clark, 2008 WL 2200047,
at *1. The defendants did not file a responsive pleading. Id. Upon the plaintiff’s
Tennessee Rule of Civil Procedure 55.01 motion for default judgment, the trial court
conducted a hearing during which one of the defendants appeared but was not sworn. Id.
Based solely on the complaint and the plaintiff’s affidavit, the trial court granted default
judgment to the plaintiff against both defendants for the cost of the repairs. Id. On
appeal, this Court concluded that the trial court had erred by following the procedure for
a default judgment in lieu of the statutory procedure for a sworn account set forth in
Tennessee Code Annotated § 24-5-107. Clark, 2008 WL 2200047, at *4 (“The default
judgment procedure set forth in Tennessee Rule of Civil Procedure 55.01 cannot be used
to shortcut a suit on a sworn account and prevent a defendant from appearing before the
court and orally denying the account under oath pursuant to Tenn. Code Ann. § 24-5-
107(b).”).

Ms. King particularly relies on the Clark Court’s summary of the statutory
procedure for sworn accounts, providing in pertinent part:

Pursuant to the statute, a plaintiff can obtain judgment in a suit on a
sworn account without the necessity of calling any witnesses unless the
defendant files a sworn denial of the account or appears at the hearing and
orally denies the account under oath. Tenn. Code Ann. § 24-5-107(a). In
the event the defendant appears at the hearing and makes the necessary
13
 denial under oath, the plaintiff cannot stand on the sworn account and must
prove his or her case. Cave v. Baskett, 22 Tenn. (3 Hum.) 340, 343 (Tenn.
1842) (stating “[a] denial on oath will do away all the force of the
plaintiff’s affidavit.”); see also Brien v. Peterman, 40 Tenn. (3 Head) 498,
499 (Tenn. 1859). To prevent the plaintiff from being ambushed by the
surprise appearance of the defendant at trial, the trial court is required to
continue the case, upon motion of the plaintiff, until a date certain. Tenn.
Code Ann. § 24-5-107(b). The trial court also has the right to continue the
case in the interest of justice. Id.

Id. at *3 (emphasis added).

Ms. King argues that the statutory scheme for sworn accounts presents a unique
instance because “no other cause of action allows a litigant to wait until an evidentiary
hearing to raise defenses and objections, which is expressly allowed under this statute.”
We disagree with Ms. King’s interpretation and find her interpretation of the conjunction,
“or,” in the statute to be overly broad. Pursuant to Tennessee Code Annotated § 24-5-
107, a defendant may file a sworn denial of the account or may appear at the hearing and
orally deny the account under oath. See Clark, 2008 WL 2200047, at *3. The statute
provides in subsection (a) that the plaintiff’s sworn account “is conclusive against the
party sought to be charged, unless that party on oath denies the account or except as
allowed under subsection (b).” Tenn. Code Ann. § 24-5-107 (emphasis added).
Therefore, the proceeding set forth in subsection (b) allowing for an oral denial of the
account under oath “and assert[ing] any defense or objection” does not come into play
unless the defendant has not filed a sworn denial. Id.; see In re Estate of Tanner, 295
S.W.3d at 614 (“When a statute is clear, we apply the plain meaning without
complicating the task.” (citing Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507
(Tenn. 2004))).

The issue in this action then narrows to whether the fact that Ms. King did not
swear to her responsive pleading, filed by her attorney on her behalf, means that she had
not yet denied the account, indicating effectively, as Ms. King argues, that Rule 8.03
would not apply to preclude her from raising an affirmative defense orally at trial. The
parties have not presented and our research has not revealed a Tennessee case directly on
point with this issue. However, a comparison of four cases involving the sworn account
statute is illuminating. We will address each in turn.

First, we find Ms. King’s reliance on Clark to be unavailing because the factual
and procedural situation in Clark is highly distinguishable from this case. Unlike Ms.
King, the Clark defendants filed no responsive pleading. See Clark, 2008 WL 2200047,
at *1. There is also no indication in Clark that the defendants were served with or
14
responded to any request for admissions such as the request that resulted in Ms. King’s
responses and ultimately the Stipulated Exhibit. See id. In addition, as the trial court
noted in its order denying Ms. King’s motion to alter or amend, the hearing in Clark was
conducted upon the plaintiff’s motion for default judgment, filed with the assertion that
the defendants had failed entirely to respond to the complaint. Id. In this case, the trial
court considered Ms. King’s answer denying that she owed the debt, together with the
Stipulated Exhibit in which she acknowledged receiving the money transfers, before
concluding that she was untimely in attempting to raise an affirmative defense at trial that
she had not raised in her responsive pleading.

Second, we likewise find Ms. King’s reliance on First Cmty. Fin. Servs. v.
Simmons, No. M2010-01597-COA-R3-CV, 2011 WL 2416680 (Tenn. Ct. App. June 10,
2011), to be unavailing. In Simmons, a general sessions court entered money judgments
against two defendants upon civil warrants filed by the plaintiff lender and following a
bench trial. See Simmons, 2011 WL 2416680, at *1. By agreement, the defendants
began making monthly payments on the judgments and did so for approximately one
year. Id. Nearly two years after the judgments had been entered, the defendants filed a
Tennessee Rule of Civil Procedure 60.02 motion to vacate the judgment in the general
sessions court, which the court denied as untimely pursuant to the statute governing Rule
60 motions in general sessions court. Id. (citing Tenn. Code Ann. § 16-15-727(b)).3 The
defendants then appealed to circuit court, which dismissed the appeal upon determining
that the general sessions court had lacked subject matter jurisdiction due to the untimely
motion and that the circuit court lacked subject matter jurisdiction for the same reason.
Simmons, 2011 WL 2416680, at *2. This Court affirmed dismissal of the appeal for lack
of subject matter jurisdiction. Id. at *4. In consideration of the defendants’ additional
argument that Tennessee Code Annotated § 24-5-107 provided them with “the right to
use their Rule 60.02 motion to challenge the validity of the [promissory] notes in
question,” this Court determined that “nothing in that [sworn account] statute cures the
untimeliness of [the defendants’] motion.” Id.

In support of her argument that as long as the judgment was not yet entered, she
should have been allowed to raise any defense as part of an oral denial under oath, Ms.
King relies on the following passage from the Simmons decision:

To sum up, when the lender presented the promissory notes at issue
to the trial court, Defendants could have denied under oath the validity of
those notes because of forgery or any other basis, and they would have been
entitled to a continuance and to a trial of the matter under Tenn. Code Ann.
3
As Dr. McLaughlin notes, except as provided by Tennessee Rule of Civil Procedure 1 and where
otherwise provided by statute, the Rules of Civil Procedure do not apply to general sessions courts. See
Tenn. R. App. P. 1.
15
 § 24-5-107(b). Because they did not do so, final judgments were rendered
against them and the General Sessions Court lost any further jurisdiction of
the case.

Id. at *5. In contrast to this action, however, the defendants in Simmons had filed no
responsive pleading prior to the bench trial conducted in general sessions court. See id. at
*1. In this passage summarizing the procedure that the defendants could hypothetically
have employed under the sworn account statute, this Court emphasized that the
defendants could have presented any defense orally under oath at the point when they had
not entered a sworn denial or any responsive pleading and were appearing before the
court for the first time. See id. (citing Tenn. Code Ann. § 24-5-107). This was not the
procedural status in the case at bar when Ms. King had filed a responsive pleading and
agreed to the Stipulated Exhibit prior to trial.

Third, Dr. McLaughlin relies on this Court’s decision in Liberty Mut. Ins. Co. v.
Friendship Home Health Agency, No. M2007-02787-COA-R3-CV, 2009 WL 736659
(Tenn. Ct. App. Mar. 19, 2009), for the proposition that Rule 8.03 does apply to sworn
account actions. In Liberty Mutual, this Court affirmed the trial court’s money judgment
in favor of the plaintiff insurance company on a sworn account action against the
defendant corporation. Liberty Mut., 2009 WL 736659, at *1-2. The defendant had
entered a “Sworn Denial on a Sworn Account” but, as relevant here, had failed to raise
the affirmative defense of the statute of frauds as it applied to renewal of the defendant’s
policy with the plaintiff. Id. at *2, *7. During trial, the defendant’s counsel mentioned
the statute of frauds in cross-examining a witness, but that line of questioning was
interrupted by the trial court’s admonishment to counsel that “‘if you have some law in
that regard you [sh]ould tell the court at the end of the case[.]’” Id. at *7. The trial court
did not mention the statute of frauds in its ruling. Id.

On appeal, the Liberty Mutual defendant raised the issue, among others, of
whether the trial court had erred by failing to find that the plaintiff had violated the
statute of frauds. Id. This Court determined that the defendant had waived the issue
because the statute of frauds had not been raised as an affirmative defense in the
defendant’s responsive pleading and had not been tried by implied consent. Id. Although
the procedural posture in Liberty Mutual is somewhat distinguishable from this case
because the defendant’s answer was sworn when Ms. King’s answer was signed solely by
her attorney, the decision in Liberty Mutual demonstrates that a defendant in a sworn
account action cannot raise an affirmative defense orally for the first time at trial if the
defendant has elected to respond through a sworn pleading and has failed to raise the
affirmative defense in that written pleading. See id.

16
 Finally, although not cited by either party, we find a comparison significant
between the instant action and this Court’s decision in Am. Express Bank, FSB v.
Fitzgibbons, 362 S.W.3d 93 (Tenn. Ct. App. 2011). In Fitzgibbons, this Court affirmed
the trial court’s grant of summary judgment in favor of the plaintiff creditor in a sworn
account action. Fitzgibbons, 362 S.W.3d at 94. The defendant, “proceeding pro se, filed
an unsigned answer in which he denied the substance of the allegations of the complaint.”
Id. at 95. He then “failed to file any type of response” to the plaintiff’s request for
admissions and “failed to properly respond” to the plaintiff’s subsequent motion for
summary judgment and statement of undisputed material facts. Id.

On appeal, the Fitzgibbons defendant acknowledged that a business of which he
purported to be a member had defaulted on the debt, but he attempted to raise the defense
that he was not personally responsible for the business’s debt. Id. at 96. This Court
determined that the trial court had properly granted summary judgment to the plaintiff
because at the time of the hearing on the summary judgment motion, the defendant had
not entered any denial that, pursuant to Tennessee Code Annotated § 24-5-107, would
have required the plaintiff “to bring forth further proof of its claim.” Id. at *97
(“Contrary to the express provisions of the statute requiring a denial of the charges under
oath, [the defendant] filed only an unsworn, unsigned answer generally denying the
allegations of the complaint—in effect, under the statute, no denial at all.”). Id.

In this case, if we were to follow Ms. King’s argument to its conclusion, we would
equate her unsworn general denial, which was undisputedly filed on her behalf by her
attorney, together with her responses to Dr. McLaughlin’s requests for admissions and
agreement to the Stipulated Exhibit, with the Fitzgibbons defendant’s completely
unsigned answer and lack of response to the plaintiff’s discovery request and summary
judgment motion. The relevant distinction between the Fitzgibbons defendant and Ms.
King would then be that Ms. King appeared at trial ready to deny the debt under oath.
Ms. King is essentially requesting that we treat her appearance at trial and request to
orally swear a denial of the debt as her first response to the lawsuit, erasing the effect of
her prior responses. This we decline to do.

Through a pleading signed by her attorney on her behalf, Ms. King filed an answer
that gave notice to Dr. McLaughlin and the trial court that she was denying the validity of
the debt but gave no notice of an affirmative defense. See generally Tenn. R. Civ. P.
11.02 (setting forth the significance of a pleading signed by an attorney as to
representations made to the court). Ms. King then responded to requests for admissions
and agreed to the Stipulated Exhibit still without indicating an affirmative defense.
Under the particular facts of this case, we determine that Ms. King entered a general
denial with her answer that was accepted by the trial court and was effective insofar as
the trial court recognized her denial of the debt’s validity. She did not, however, assert a
17
timely affirmative defense. We conclude that, pursuant to Rule 8.03, the trial court did
not err by determining that Ms. King had waived any affirmative defense, including an
assertion that the money transfers were gifts, by failing to plead it in her answer.4

VI. Conclusion

For the reasons stated above, we affirm the trial court’s judgment in its entirety.
This case is remanded to the trial court, pursuant to applicable law, for enforcement of
the trial court’s judgment and collection of costs assessed below. The costs on appeal are
assessed against the appellant, Elizabeth King McLaughlin a/k/a Rev. Elizabeth King.

_________________________________
THOMAS R. FRIERSON, II, JUDGE

4
Ms. King has also relied in part on a blank “Sworn Denial” form, approved for pro se use by the
Tennessee Supreme Court in sworn account actions in general sessions court. As Ms. King points out,
the form includes the following instruction to the defendant: “Please briefly list some of your reasons for
your denial. You can raise additional defenses at the hearing.” Ms. King asserts that this instruction
indicates approval by our Supreme Court of the proposition that a defendant may “raise any defense in
the responsive pleading.” We disagree. The form was designed for use in general sessions court where,
with exceptions not applicable here, the Tennessee Rules of Civil Procedure do not apply. See Tenn. R.
Civ. P. 1. Moreover, the language of the form, again designed for pro se use in general sessions court,
does not attempt to distinguish between simple denial of a claim and the assertion of an affirmative
defense. Ms. King’s reliance on the “Sworn Denial” form is unavailing.
18