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Schuelke v. Gudgeon

Court of Appeals of Tennessee, Nashville

September 23, 2014

DENNIS DAVID SCHUELKE
v.
BRAD GUDGEON ET AL.

Assigned on Briefs June 9, 2014

Appeal from the Circuit Court for Sumner County No. 2013-CV-82 C.L. Rogers, Judge

Dennis David Schuelke, Hendersonville, Tennessee, appellant, Pro Se.

Brad Gudgeon and Pam Gudgeon, Hendersonville, Tennessee, appellees, Pro Se.

W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.

OPINION

W. NEAL McBRAYER, JUDGE

Dennis David Schuelke filed a warrant in the General Sessions Court of Sumner County, Tennessee, against Brad Gudgeon and Pam Gudgeon. In the warrant, Mr. Schuelke asserted that "monies [were] given to Mr. and Mrs. Gudgeon that were promised to be returned with a 100% promise, then denied." Following a trial, the general sessions court dismissed the warrant. Mr. Schuelke appealed the decision to the Circuit Court for Sumner County.

In an amended complaint, Mr. Schuelke asserted two claims against Mr. and Mrs. Gudgeon. First, Mr. Schuelke claimed Mr. Gudgeon unlawfully sold him a music CD for $20 during the summer of 2011. Mr. Schuelke alleged the sale was unlawful because Mr. Gudgeon did not have the requisite peddler's permit from the City of Hendersonville. Second, Mr. Schuelke alleged Mr. Gudgeon owed him a debt of $4, 000. Expanding on his claim in the general sessions warrant, Mr. Schuelke asserted that Mr. Gudgeon approached him at his residence in November or December 2011 claiming to be a licensed securities broker. According to Mr. Schuelke, Mr. Gudgeon "asked for money for he and his wife for their own business short term, upon telling Plaintiff he would like to set up an account for Plaintiff after the first of the year." Mr. Schuelke alleges Mr. Gudgeon was not licensed to sell securities and that "Defendants took [his] property of $4, 000 under unlawful terms, theft by deception, larceny by trickery, both of which are numerous felonies." Mr. Schuelke sought damages in the amount of $4, 000 for the money paid to Mr. Gudgeon and $20 for the CD, plus interest.

Mr. and Mrs. Gudgeon responded to the amended complaint by stating, first, that Mrs. Gudgeon was never a party to the transaction between Mr. Gudgeon and Mr. Schuelke. Second, Mr. and Mrs. Gudgeon asserted that Mr. Gudgeon and Mr. Schuelke entered into a business agreement, not a loan, and that Mr. Schuelke asked Mr. Gudgeon to invest the money on his behalf. They denied that Mr. Gudgeon solicited business from Mr. Schuelke or offered to act as Mr. Schuelke's broker. Mr. and Mrs. Gudgeon asserted a counterclaim against Mr. Schuelke for malicious prosecution, harassment, lost wages, and court costs.

The parties tried their case on July 1, 2013. The trial court issued an Order dated July 18, 2013, dismissing Mr. Schuelke's claims with prejudice. The Gudgeons voluntarily dismissed their counterclaim. In its Order, the court stated the following:

Plaintiff asserted Defendant had defaulted in repayment of a loan of $4, 000.00. The Court finds that the Plaintiff admitted under oath that this was not true. Plaintiff and Defendant were acquaintances. Plaintiff admitted he asked Defendant to invest the $4, 000.00 on the Defendant's personal home online trading account. Defendant advised Plaintiff of the risk. The parties put in writing and signed their understanding and the statement of the risk involved . . . .
Plaintiff's claim for a loan of $4, 000.00 is dismissed. Defendant introduced Exhibits of the bank deposit of Plaintiff's $4, 000.00, the transfer of Plaintiff's $4, 000.00 to Defendant's individual on-line trade account, the receipt by the trade account of Plaintiff's $4, 000.00, the account activity of Plaintiff's $4, 000.00 along with Defendant's funds, the trade account beginning balance, the trade activity, and the trade account balance decline over time to zero balance. No account withdrawals or transfers to Defendant or any other person is shown. No testimony was introduced nor was there any claim made Defendant received or sought to charge or be paid any commission or compensation.
In the alternative, Plaintiff claims Defendant misrepresented his qualifications and the investment account. Plaintiff asserts Defendant was unlicensed to solicit and/or offer to sell investments. Defendant did not solicit or offer to sell any investment to Plaintiff. Plaintiff solicited Defendant. Defendant's only advice to Plaintiff after being requested by Plaintiff to invest, is contained ...

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