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Mamon v. Geicoindemnity Insurance Co.

Court of Appeals of Tennessee, Nashville

September 15, 2017

KEVIN J. MAMON
v.
GEICOINDEMNITY INSURANCE COMPANY, et al.

          Assigned on Briefs August 1, 2017

         Appeal from the Circuit Court for Davidson County No. 12C4564 Hamilton V. Gayden, Jr., Judge

         Plaintiff appeals the dismissal of his claims against all three defendants and the award of $400 to defendant Master Muffler on its counterclaim following a bench trial. We affirm the trial court in all respects.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Kevin J. Mamon, Michigan City, Indiana, pro se.

          Joshua G. Offutt and Jennifer P. Ogletree, Nashville, Tennessee, for the appellee, Master Muffler.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Thomas R. Frierson, II, and Brandon O. Gibson, JJ., joined.

          MEMORANDUM OPINION [1]

          FRANK G. CLEMENT, JR., P.J., M.S.

         Kevin Mamon ("Plaintiff") commenced this action on November 8, 2012, seeking damages for a personal injury and breach of contract. The named defendants were Geico Indemnity Insurance Company ("Geico"), Master Muffler, and Sam Owens, the owner of Master Muffler.

         Plaintiff engaged Master Muffler in April 2012 to replace the engine in a 1998 Jeep Grand Cherokee and contends that an agreement was reached between his automobile insurer, Geico, and Master Muffler pursuant to which Master Muffler would service the Jeep and Geico would pay Master Muffler $1, 900 for the work. Master Muffler insists Geico never agreed to pay for the radiator; rather, Plaintiff agreed to pay for the service to the radiator. Master Muffler acknowledges that it received payment from Geico to replace the engine.

         Plaintiff also alleged that he had to call Master Muffler daily to inquire as to the status of the work. When Master Muffler completed the work, it refused to release the Jeep claiming that Plaintiff still owed $400 for the radiator. A few days later, Master Muffler realized that the Jeep was missing and notified Plaintiff that it had been stolen; however, it was subsequently determined that Plaintiff used his spare key to remove the vehicle from Master Muffler's premises without the knowledge or consent of Master Muffler.[2]

         Plaintiff commenced this action on November 8, 2012. After a very lengthy and onerous procedural history, which was principally due to Plaintiff's acts and omissions, the case was tried on May 4, 2016, and, not unlike many of the prior hearings, Plaintiff failed to attend. At the conclusion of the trial, the court entered a thorough order in which it recited the procedural history and factual background, its findings of fact, analysis, and conclusion. In pertinent part the court held:

This Court finds that pursuant to its Order dated November 23, 2015, this matter was set for a two-day jury trial to begin on April 11, 2016. Despite the plaintiff being incarcerated, this Court afforded the plaintiff the right to appear at the trial via telephone and/or video/Skype. Since the entry of that Order, this Court has heard nothing from the plaintiff nor did the Court receive any request from the plaintiff to appear for the trial by any other electronic device. The plaintiff was previously instructed by this Court in its Order dated January 9, 2015 to provide the Court and defense counsel of his physical location and a mailing address and upon any change in his physical location, and/or "mailing address" to notify the Court and defense counsel within 30 days. This Court notified the plaintiff that his failure to do so would be grounds to dismiss the plaintiff's case with prejudice. This Court has received no such notification from the plaintiff of any change of address, and as such, assumes the plaintiff has had no change of address.
Therefore, due to the plaintiff's failure to appear for the set trial after receiving proper notification or otherwise notifying the Court of his request to appear for the trial by any electronic device, the Court will dismiss this cause for the plaintiff's failure to prosecute. The Court finds that the plaintiff's pauper's oath does not permit the ...

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